20
Apr
2017

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 (and opposing co-counsel to do the same).  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.

Supreme Court Library List

This is a list of oral argument transcripts created by the US Supreme Court Library.  A few are published accounts, but for the significant majority the only copy that exists is the one in the custody of the Supreme Court Library.  Where it is a published account and I was able to find it online, I’ve included a link – a few more are available as part of the US Serial Set, but only available behind a Proquest paywall.

  1. Adamson v. California 332 U.S. 46, 784 (October Term 1946) No. 102
  2. Aircraft and Diesel Equipment Corporation v. Hirsch 331 U.S. 752, 332 U.S. 752 (October Term 1947) No. 95
  3. Alabama v. Texas 347 U.S. 272 (October Term 1953) Original
  4. Allred v. United States 334 U.S. 131 (October Term 1947) No. 79
  5. American Theaters Association v. United States 334 U.S. 131 (October Term 1947) No. 79
  6. Arkansas v. Texas 346 U.S. 368 (October Term 1953) Original
  7. Armstrong v. United States 4171 182 U.S. 243 (October Term 1900) No. 509 *also in serial set v. 4171 – the Insular Cases
  8. Ashwander v. Tennessee Valley Authority 297 U.S. 288 (October Term 1935) Nos. 403 & 404
  9. Associated Industries v. Department of Labor (N.Y.) 299 U.S. 515 (October Term 1936) No. 64
  10. Associated Press, International News Service v. National Labor Relations Board 301 U.S. 103 (October Term 1936) No. 365 *also in serial set v. 10099
  11. Automatic Canteen Company of America v. Federal Trade Commission 346 U.S. 61 (October Term 1952) No. 89
  12. Automatic Radio Manufacturing Company v. Hazeltine Research, Inc. 339 U.S. 827 (October Term 1949) No. 455
  13. Barrows v. Jackson 346 U.S. 249 (October Term 1952) No. 517
  14. Bazley v. Commissioner of Internal Review 29 U.S. 701, 331 U.S. 737 (October Term 1946), 332 U.S. 752 (October Term 1947) No. 287
  15. Blau, Irving v. United States 340 U.S. 159 (October Term 1950) No. 20
  16. Blau, Patricia v. United States 340 U.S. 332 (October Term 1950) No. 20
  17. Bolling v. Sharpe 349 U.S. 294 (October Term 1954) No.4
  18. Bridges v. United States 346 U.S. 209 (October Term 1952) No. 548
  19. Briggs v. Elliott 349 U.S. 294 (October Term 1954) No. 2
  20. Brown v. Board of Education 349 U.S. 294 (October Term 1954) No. 1
  21. Burstyn v. Wilson 343 U.S. 495 (October Term 1951) No. 522
  22. Carmichael v. Gulf States Paper Corporation 301 U.S. 495 (October Term 1936) No. 797 *also in serial set v. 10100 (Heinonline | Proquest)
  23. Carmichael v. Southern Coal & Coke Company 301 U.S. 495 (October Term 1936) No. 724 *also in serial set v. 10100 (Heinonline | Proquest)
  24. Carter v. Carter Coal Company 298 U.S. 238 (October Term 1935) Nos. 636, 649, 650, 651 *also in serial set v. 10016 (Proquest)
  25. Cervantes v. United States 57 U.S. 619 (December Term 1853) [no case number] *in both the Rare Book and Oral Argument collections (2 copies)
  26. Charles C. Steward Machine Company v. Davis 301 U.S. 548 (October Term 1936) No. 837 *also in serial set v. 10100 (Heinonline | Proquest)
  27. Chesapeake & Ohio Railroad Company v. United States 330 U.S. 806 (October Term 1946) No. 255
  28. Cities Service Gas Company v. Peerless Oil & Gas Company 340 U.S. 179 (October Term 1950) No. 153
  29. Columbia Pictures Corp. v. United States 334 U.S. 131 (October Term 1947) No. 79
  30. Commissioner of Internal Revenue v. Church 335 U.S. 632 (October Term 1948) No. 5
  31. Costello v. United States 350 U.S. 359 (October Term 1955) No. 72
  32. Crossman v. United States 182 U.S. 221 (October Term 1900) No. 340 *bound in Records & Briefs v. 37A (Insular Cases)
  33. Davis v. County School Board of Prince Edward County, Virginia 349 U.S. 294 (October Term 1954) No. 3
  34. Delima v. Bidwell 182 U.S. 1 (October Term 1900) No. 456 *also in serial set v. 4171 (Insular Cases)
  35. Dohihara v. MacArthur 338 U.S. 197 (October Term 1948) No. 240
  36. Dooley v. United States 182 U.S. 222 (October Term 1900) No. 501 *also in serial set v. 4171 (Insular Cases)
  37. Dooley v. United States 183 U.S. 151 (October Term 1900) No. 502 *bound in with Records & Briefs v. 37A, also in serial set v. 4171 (Insular Cases)
  38. Downes v. Bidwell 182 U.S. 244 (October Term 1900) No. 507 *also in serial set v. 4171 (Insular Cases)
  39. Ewing v. Mytinger & Casselberry 339 U.S. 594 (October Term 1949) No. 568
  40. Ex Parte Milligan 71 U.S. (4 Wall.) 2 (December Term 1865) – Argument of James Garfield, Argument of David Field
  41. Federal Power Commission v. Arkansas Power & Light Company 329 U.S. 703, 330 U.S. 802, 856 (October Term 1946) No. 543
  42. Federal Power Commission v. Panhandle Lastern Pipe Line Company 337 U.S. 498 (October Term 1948) No. 558
  43. Federal Power Commission v. Wisconsin 1 347 U.S. 672 (October Term 1953) No. 280 1
  44. Federal Trade Commission v. Cement Institute 1 333 U.S. 683 (October Term 1947) No. 2
  45. Federal Trade Commission v. Ruberoid Company 343 U.S. 470 (October Term 1951) No. 44
  46. Fourteen Diamond Rings v. United States 183 U.S. 176 (October Term 1901) No. 153 *also in serial set v. 4171 (Insular Cases)
  47. Gardner v. New Jersey 328 U.S. 850, 876 (October Term 1946), 329 U.S. 565 (October Term 1946), 330 U.S. 853 (October Term 1946) No. 92
  48. Gebhart v. Belton 349 U.S. 294 (October Term 1954) No.5
  49. Georgia Railroad and Banking Company v. Redwine 342 U.S. 299 (October Term 1951) No. 1
  50. Glore, Forgan & Company v. United States 330 U.S. 806 (October Term 1946) No. 256 (affirmed per curiam, no opinion)
  51. Goetz v. United States 47 77 182 U.S. 221 (October Term 1900) No. 340 *also in serial set v.4171 (Insular Cases)
  52. Greenberg v. United States 342 U.S. 917 (October Term 1951) No. 461
  53. Groves v. Slaughter, Pet. 449 (January Term 1841) In. Gerry, Elbridge T., Arguments… [1649-1841] v. 4 Arguments by Robert James Walker
  54. Helvering v. Davis 301 U.S. 619 (October Term 1936) No. 910 *also in serial set v. 101015, S. Doc. 71 (Proquest)
  55. Hirota v. Macarthur 338 U.S. 197 (October Term 1948) No. 239
  56. Hoffman v. United States 341 U.S. 479 (October Term 1950) No. 513
  57. Interstate Natural Gas Company v. Federal Power Commission 329 U.S. 802, 330 U.S. 852, 331 U.S. 682, 332 U.S. 785 (October Term 1946 & 1947) No. 733
  58. Kansas v. Colorado 185 U.S. 125 (October Term 1901), 206 U.S. 46 (October Term 1906) Original No. 3
  59. Kido v. Macarthur 338 U.S. 197 (October Term 1948) No. 248
  60. Lincoln Federal Labor Union v. North Western Iron & Metal Company 335 U.S. 525 (October Term 1948) No. 47
  61. Loew’s, Inc. v. United States 334 U.S. 131 (October Term 1947) No. 79
  62. Mandeville Island Farms v. American Crystal Sugar Company 334 U.S. 219 (October Term 1947) No. 75
  63. Maneja v. Waialua Agricultural Company Ltd. 349 U.S. 254 (October Term 1954) No. 357
  64. Mark (Clayton) & Company v. Federal Trade Commission 336 U.S. 956 (October Term 1948) No. 464
  65. McCrackan v. Hayward 2 How 608 (January term 1844) In: Gerry, Elbridge Thomas, comp.Law Arguments [1649-1881] v. 3
  66. Meyer v. Nebraska 262 U.S. 390 (October Term 1922) No. 325  (copy in Records & Briefs volume) (not in Gale, presumably the Court has a copy though)
  67. National Lead Company v. United States 332 U.S. 751 (October Term 1946) No. 90
  68. NLRB V. Atkins (E.C.) & Co. 329 U.S. 710, 331 U.S. 398, 868 (October Term 1946) No. 419
  69. NLRB v. Donnelly Garment Company 330 U.S. 219 (October Term 1946) No. 38
  70. NLRB v. Freidman-Harry Marks Clothing Company 301 U.S. 58 (October Term 1936) Nos. 422, 423 *also in serial set v. 10099
  71. NLRB v. Fruehauf Trailer Company 301 U.S. 49 (October Term 1936) Nos. 420, 421 *also in serial set v. 10099
  72. NLRB v. Jones & Laughlin Steel Corporation 301 U.S. 1 (October Term 1936) No. 419 *also in serial set v. 10099
  73. NLRB v. Jones & Laughlin Steel Corporation 331 U.S. 416, 868, 332 U.S. 823 (October Term 1946) No. 418
  74. NLRB v. Pittsburgh Steamship Company 340 U.S. 498 (October Term 1950) No. 42
  75. NLRB v. Tower (A.J.) 329 U.S. 324 (October Term 1946) No. 60
  76. Norman v. Baltimore-Ohio Railroad Company 294 U.S. 240 (October Term 1934) No. 270 (Attorney General Cummings’ argument reprinted in the Congressional Record)
  77. Northern Securities v. United States 193 U.S. 197 (October Term 1903) No. 277
  78. Nortz v. United States 294 U.S. 317 (October Term 1934) No. 53
  79. Nye & Nissen v. United States 336 U.S. 613 (October Term 1948) No. 228
  80. Opper v. United States 348 U.S. 84 (October Term 1954) No. 49
  81. Otis & Company v. United States 330 U.S. 806 (October Term 1946) No. 254
  82. Packard Motor Car Company, Gem Manufacturing Company v. NLRB 329 U.S. 707, 330 U.S. 485 (October Term 1946) No. 658
  83. Paramount Pictures, Inc. v. United States 334 U.S. 131 (October Term 1947) No. 79
  84. Parker v. Illinois 333 U.S. 571 (October Term 1947) No. 270
  85. Penfield Company v. Securities & Exchange Commission 330 U.S. 585 (October Term 1946) No. 453
  86. Pennsylvania Public Utility Commission v. Federal Power Commission 343 U.S. 414 (October Term 1951) No 428
  87. Pennsylvania Water & Power Company v. Federal Power Commission 343 U.S. 414 (October Term 1951) No. 428
  88. Perry v. United States 294 U.S. 330 (October Term 1934) No. 532
  89. Peters v. Hobby 349 U.S. 331 (October Term 1954) No. 376
  90. Phillips Petroleum Company v. Oklahoma 340 U.S. 190 (October Term 1950) No. 153
  91. Phillips Petroleum Company v. Wisconsin 34/ U.S. 672 (October Term 1953) No. 280
  92. Radio Corporation of America v. United States 341 U.S. 412 (October Term 1950) No. 565
  93. Ramspeck v. Federal Trial Examiners Conference 345 U.S. 128 (October Term 1952) No. 278
  94. Ray v. Blair 343 U.S. 214 (October Term 1951) No. 649
  95. Regular Common Carrier Conference of American Trucking Assoc’ v. Texas & Pacific Motor Transport Company 340 U.S. 450 (October Term 1950) No. 38
  96. Rhode Island v. Louisiana 347 U.S. 272 (October Term 1953) Blank original
  97. Richfield Oil Corporation v. United States 343 U.S. 922 (October Term 1951) No. 39
  98. Rogers v. United States 340 U.S. 367 (October Term 1950) No. 20
  99. Ruberoid Company v. Federal Trade Commission 343 U.S. 470 (October Term 1951) No. 448
  100. Schine Chain Theatres, Inc. v. United States 334 U.S. 110 (October Term 1947) No. 10
  101. Spector Motor Service, Inc. v. Mclaughlin 323 U.S. 101 (October Term 1944) No. 62
  102. Spector Motor Service, Inc. v. O’Connor 340 U.S. 602 (October Term 1950) No. 132
  103. Spiegel v. Commissioner of Internal Revenue 335 U.S. 701 (October Term 1948) No. 3
  104. St. Joe Paper Company v. Atlantic Coast Line Railroad Company 347 U.S. 298 (October Term 1953) No. 24
  105. Standard Oil Company v. Federal Trade Commission 340 U.S. 231 (October Term 1950) No.l
  106. Stearns (E.C.) & Company v. Andrews 299 U.S. 515 (October Term 1936) No. 50
  107. Steele v. Bulova Watch Company 344 U.S. 280 (October Term 1952) No. 38
  108. Stefanelli v. Minard 342 U.S. 117 (October Term 1951) No. 2
  109. Swift & Company v. United States 343 U.S. 373 (October Term 1951) No. 282
  110. Texas v. Florida 306 U.S. 398 (October Term 1939) No. 11 Original
  111. Texas v. Wisconsin 347 U.S. 672 (October Term 1953) No. 280
  112. United Artists Corporation v. United States 334 U.S. 131 (October Term 1947) No. 79
  113. United Shoe Machinery Corporation v. United States 347 U.S. 521 (October Term 1953) No. 394
  114. United States v. American Tobacco Company 221 U.S. 106 (October Term 1910) No. 118/119
  115. United States v. Amistad 40 U.S. 518 (January Term 1841)
  116. United States v. Bankers Trust Company 294 U.S. 240 (October Term 1934) Nos. 471 & 472
  117. United States v. California Eastern Line, Inc. 348 U.S. 351 (October Term 1954) No. 263
  118. United States v. Champlin Refining Company 341 U.S. 290 (October Term 1950) No. 433
  119. United States v. Columbia Steel Company 334 U.S. 495 (October Term 1947) No. 461
  120. United States v. Employing Plasterers Association 347 U.S. 186 (October Term 1953) No. 440
  121. United States v. Felin (John J.) & Company 334 U.S. 624 (October Term 1946) No. 862
  122. United States v. Grant (W.T.) Company 345 U.S. 629 (October Term 1952) No. 532
  123. United States v. Green 350 U.S. 415 (October Term 1955) No. 54
  124. United States v. Griffith 334 U.S. 100 (October Term 1947) No. 64
  125. United States v. Line Material Company 333 U.S. 287 (October Term 1947) No. 8
  126. United States v. Paramount Pictures, Inc. 334 U.S. 131 (October Term 1947) No. 79 (my scan)
  127. United States v. Pewee Coal Company, Inc. 341 U.S. 114 (October Term 1950) No. 168
  128. United States v. Pullman Company 330 U.S. 806 (October Term 1946) No. 253
  129. United States v. Ragen 340 U.S. 462 (October Term 1950) No. 83
  130. United States v. Rock Island Motor Transit Company 340 U.S. 419 (October Term 1950) No. 25
  131. United States v. Seatrain Lines 329 U.S. 429 (October Term 1946) No. 6
  132. United States v. Texas & Pacific Motor Transport Company 340 U.S. 450 (October Term 1950) No. 38
  133. United States v. United Mine Workers 329 U.S. 708, 330 U.S. 258 (October Term 1946) No. 759
  134. United States v. United States Gypsum Company 333 U.S. 364 (October Term 1947) No. 13
  135. United States v. United States Gypsum Company 340 U.S. 76 (October Term 1950) No. 30
  136. United States v. Wheelock Brothers, Inc. 341 U.S. 319 (October Term 1950) No. 169
  137. Universal Pictures Corporation v. United States 334 U.S. 131 (October Term 1947) No. 79
  138. Virginia v. West Virginia 11 Wall 39 (December Term 1870) In: Gerry, Elbridge Thomas, comp. Law Arguments… [1649-1881] v. 4 Argument by Charles James Faulkner
  139. Virginian Railway Company v. System Federation No. 40, Railway Employees Department of the American Federation of Labor 300 U.S. 515 (October Term 1936) No. 324 *also in serial set v. 10099 (also here)
  140. Washington, Virginia & Maryland Coach Company v. National Labor Relations Board 301 U.S. 142 (October Term 1936) No. 469 *also in serial set v. 10099
  141. Wheelock Brothers, Inc. v. United States 341 U.S. 319 (October Term 1950) No. 169
  142. Whitaker v. North Carolina 335 U.S. 525 (October Term 1948) No. 34
  143. Youngstown Sheet & Tube Company v. Sawyer 343 U.S. 579 (October Term 1951) No. 744

OT1952-1954 Transcripts on Microfiche

The microform discussed above begins its coverage in OT1952, but only includes a few such transcripts before the era of recording begins for OT 1955.  Here’s what’s included (I may have missed a case from 1952, let me know):

1952
1953
  • Arkansas v. Texas
  • Alabama v. Texas
  • Briggs v. Elliott
  • Bolling v. Sharpe
  • Gebhart v. Belton
  • Florida East Coast RR v. Atlantic Coast Line
  • Philipps Petroleum v. Wisconsin
  • United Shoe Machinery v. US
  • US v. Employing Lathers Assn
  • US v. Employing Plasterers Assn
1954

Transcripts of Oral Arguments in the Landmark Constitutional Cases Series

This is a list I’ve compiled of what transcripts exist from before OT1955 in the multivolume set, available at many law libraries.  Complete oral arguments (both sides or entire transcript):

Partial Oral Argument (typically one side):

  • Osborn v. Bank of the United Stated
  • Ogden v. Saunders
  • Prize Cases
  • Ableman v. Booth
  • Dred Scot v. Sandford
  • George v. Stanton
  • Slaughter-House Cases
  • Legal Tender Cases
  • U.S. v. Cruikshank
  • Murdock v. Memphis
  • In re Neagle
  • Church of Jesus Christ of Latter-Day Saints v. US
  • In re Debs
  • Meyer v. Nebrasks
  • Adkins v. Children’s Hospital
  • Bailey v. Drexel (abstract of argument)
  • Perry v. US
  • US v. Butler
  • Ashwander v. Tennessee Valley Authority

Transcripts Not Included in a Collection I Know Of

This is sort of a miscellaneous collection of transcripts that are available, either through this blog or elsewhere.  Lone Dissent also has a collection of these transcripts scanned – I’ve linked where appropriate, but they also have AFL v. American Sash and Door scanned, which I don’t see listed anywhere else.

  1. Mazer v. Stein (OT 1953)
  2. Virginia v. West Virginia, 206 U.S. 290 (1907)
  3. California v. Central Pacific R. Co., 127 U.S. 1 (1888) (argument of railroad counsel only)
  4. The Telephone Cases, 126 U.S. 1 (1888)
  5. AFL v. American Sash and Door (OT 1948)
  6. International News Service v. Associated Press (INS v. AP) (1918)
  7. Associated Press v. United States (1944) NEW!!!

Other pamphlets containing arguments of one side, likely from notes (this is only a partial list, additions welcome):

  1. Jones v. Van Zandt, 46 U.S. 215 (1847)
  2. Luther v. Borden, 48 U.S. 1 (1849)
  3. Vidal v. Girard’s Executors, 43 U.S. 127 (1844)
  4. Garesche v. Missouri (pro se argument in 1867) – likely consolidated with Cummings v. Missouri, 71 U.S. 277 (1867).
  5. Dred Scot v. Sandford
  6. Churchill v. Utica
  7. Rhode Island v. Massachusetts, 37 U.S. 657 (1838)
  8. Ex Parte Nielsen (1889)
  9. The Recapture Clause Case (1923) (avail. on Gale Trials Database)
  10. Cuba v. North Carolina (1917) (avail. on Gale Trials Database)

There are many more of these pamphlets with arguments from the mid-nineteenth century, I’d urge anyone researching a particular case to look on Hathitrust or the Gale Great Trials database.

  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.

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