The Supreme Court sits at the top of the United States legal system, and despite its position, researchers do not possess a systematic way to assess the contemporaneous influence of law on judicial decision making. This is problematic, given research findings over the past two decades that reveal law does impact judicial decision making.
To rectify this fundamental issue, I received a National Science Foundation Doctoral Dissertation Improvement Grant (Award Number: 1728975) to digitally photograph and content analyze over 3,500 bench memoranda of two former Supreme Court justices who sat on the Court from 1970-1993.
Bench memoranda are crafted by the justices’ law clerks, some of the best and brightest young lawyers in the country, who are tasked with both summarizing and evaluating the totality of information and arguments put forward in a case before the Supreme Court. These memos are written to prepare justices for oral arguments and their weekly conference. They provide an initial evaluation of the legal arguments of each party in a case (based on briefs on the merits), as well as a description of amici, the justice’s and Court’s past treatment of precedent in the relevant area of case law, and will also even mention Congressional intentions on statues, and/or the legislative or the executive branch’s preferences in a case.
The figure to the left summarizes the distribution of content across Justice Harry A. Blackmun’s bench memoranda. The categories along the x-axis correspond to the sections that appear in each memo, presented in the order that they appear. The y-axis provides the average amount of space dedicated to each section of a memo. Overall, the median length of a bench memo is about 27 typed pages.
Click here to view an example of Justice Harry A. Blackmun’s bench memoranda, or here to view an example of Justice Thurgood Marshall’s bench memoranda. (These are large PDF files and may take a moment to load.) If you click on the links, you will see each justice’s memo for the same case, Board of Education of Westside Community Schools v. Mergens (88-1597), an Establishment Clause case that the Court heard in January, 1990. On page 36 of Justice Blackmun’s memo, his clerk recommends a reversal. This recommendation is hesitant, and is dependent on the constitutionality of the Equal Access Act. Based on the “++,” Justice Blackmun appears to favor an affirmance. Justice Marshall’s clerk also recommends a reversal on the first and ninth pages of his memo. However, in a supplemental memorandum (page 10), Marshall’s clerk also displays uncertainty. The attached piece of lined paper (page 11) makes it clear that Justice Marshall was unsure of his final decision. Ultimately, in an 8-1 decision, the Court upheld the lower court’s ruling.
Once my dissertation is complete, I will make this data broadly available for other researchers. In particular, I will be disseminating: (1) Argument and case-level files that can be merged with the Supreme Court Database that identify the types of arguments being made by each side in each case, the assessed quality of those arguments, and the recommended disposition in the case. (2) Fully searchable PDF files of each bench memo in each case. (3) Machine-readable text files of each bench memo in each case. This will provide access to this rich data source previously only available at the Library of Congress and other archives around the country.