Frequency of First Amendment cases, 2003-2013.
Frequency of First Amendment cases, 2003-2013.

The New York Times today has a fascinating article documenting The Roberts Court’s Surprising Move Leftward. Reporters Alicia Parlapiano, Adam Liptak and Jeremy Bowers analyze the court’s decisions from 1946 to the present to conclude that this term could be among the court’s most liberal since 1969.

The court’s leftward movement is modest, and it remains well to the right of where it was in the Warren court years, when the percentage of liberal decisions routinely topped 70 percent. Yet the recent numbers do seem suggestive of a shift.

The Times’ analysis is based on data from The Supreme Court Database, a data collection that contains over 200 pieces of information about each case decided by the court from 1946 to 2013. The types of information include the court whose decision the Supreme Court reviewed, the parties to the suit, the legal provisions considered in the case, and the votes of the justices.

Liberal or Conservative?

A key variable relied on in the Times’ report is whether a decision is ideologically liberal or conservative. Of course, as any court watcher knows, that is not always an easy call. So how does the database decide? It does it based on the issues in a case and how the case is decided.

For example, in cases dealing with criminal procedure, civil rights, First Amendment, due process, privacy and attorneys, decisions would be considered liberal when they come down on the side of a criminal defendant, a civil rights claimant, a person seeking access to government information, or anyone identified as an underdog. Conservative cases would be those that came out the other way.

Similarly, for cases pertaining to unions and economic activity, liberal decisions would be those that ruled in favor of a union, the government, competition, small business, debtors, injured persons, environmental protection and consumers.

For cases pertaining to judicial power, liberal rulings would be those that favor the exercise of judicial power, judicial activism and judicial review of administrative action. For cases involving federalism, liberal outcomes would be those that favor federal and executive power. For tax cases, liberal decisions are those that favor the U.S. government.

The site’s documentation explains this in more detail.

Running an Analysis

You can do your own slicing and dicing of the site’s data, much as the Times’ reporters did. The chart at the top of this post reflects a search I just ran showing the frequency of First Amendment cases from 2003 to 2013. The chart below shows whether those cases came out liberal or conservative.

Ideological direction of First Amendment decisions, 2003-2013.
Ideological direction of First Amendment decisions, 2003-2013.

The search page lets you set a range of search parameters. They include:

  • Date range or era.
  • Decision type.
  • Decision issues.
  • Legal provisions involved.
  • Vote coalitions by numbers (e.g. numbers of majority or minority votes).
  • Winning party.
  • Case disposition.
  • Declaration of constitutionality.
  • Lower court being reviewed.
  • Lower court where case originated.
  • Parties.
  • Justices.

Once you run a search and obtain the analysis, you can further configure the results to change how the information is displayed across rows and columns. You can also generate a list of all the cases included in the analysis and then view the details of any individual case.

Created in 1980s

The database was originally created by Harold J. Spaeth, research professor of law at Michigan State University College of Law and emeritus professor of political science at Michigan State, with funding from the National Science Foundation. After collecting and coding the data, he made the database public in the late 1980s. The data was later made available through this website in order to make it more accessible to a broader range of users.

Thomson Reuters – the company that owns Westlaw – has been beefing up its coverage of legal affairs in recent years, with reporting and commentary available through the Thomson Reuters News & Insight website. As part of this push into enhanced legal coverage, the company recently launched a new offshoot devoted to covering the Supreme Court’s 2011-2012 term, called Case by Case: The U.S. Supreme Court.

The site uses interactive graphical tools to help users find information about the court, the justices and the cases, with links to analytical and legal materials, including motions, briefs and opinions. While the graphical elements hold the promise of being useful, the site’s usefulness is quickly lost for anyone who does not have a Westlaw subscription.

Let’s start with the good news — the graphics. Visually, the site is well designed, making good use of its various visual elements. Across the top of the page are pictures of each of the justices. Hover over a picture for a quick snippet about the justice. For Justice Sonia Sotomayor, for example, the snippet says, “Obama appointee, court’s first Hispanic justice.”

The center part of the page highlights a particular case. In the center of the page is a synopsis of the case and links to any relevant news articles or legal documents. Framing the synopsis on either side are brief profiles of the lead attorneys for the petitioner and respondent, with links to their briefs.

Across the bottom of the page is an interactive timeline for the term. Click on a day to see the cases set for argument. Alternatively, you can use a color-coded index to filter the timeline to show only cases pertaining to a particular topic. Red signifies intellectual property cases; olive reveals only First Amendment cases.

Interactive timeline lets you filter cases by issue and see when they are scheduled for argument.

While the visuals are clever, the site’s usefulness ends there for anyone who isn’t a Westlaw subscriber. Although the site provides links to briefs, decisions and various other documents, all links lead to Westlaw. If you want to see the petitioner’s brief in a case, you’ll need a Westlaw subscription. If you want to see the court’s decision in a case, you’ll need a Westlaw subscription.

Joe Hodnicki hit the nail on the head when he wrote about this site at Law Librarian Blog, “This is another corporate avenue to promote subscribing to Westlaw to access cited content.”

If any of this were content proprietary to Westlaw, I might understand this set up. But many if not most of these documents are publicly available online. The Supreme Court’s opinions are available directly from the court itself, as well as from any number of other sites. Briefs are available from the American Bar Association’s stellar site, Preview of United States Supreme Court Cases. All sorts of background and commentary are available from the preeminent Supreme Court source, SCOTUSblog.

The bottom line is this: If you want snappy visuals, visit the new Thomson Reuters Supreme Court site. If you want substantive information without having to pay for it, go instead to one of the other Supreme Court sites I mentioned here.

Supreme Court watchers usually set their sights on the first Monday in October. This year, however, they might want to pay attention to the last Monday in September. On Monday, the preeminent Supreme Court blog, SCOTUSblog, will unveil a new look and some new features.

Tom Goldstein

SCOTUSblog has long stood out to me as among the best of the legal blogs. Here is a blog that has established itself as the definitive and authoritative resource for all things Supreme Court. It tracks the court from all angles, providing news reports, in-depth analysis, case files, court calendars and statistics. All this is done with a roster of contributors that includes practitioners, academics, journalists and others. And while the founder and publisher of SCOTUSblog, Tom Goldstein, has a practice that focuses on Supreme Court advocacy, the blog never seems like a marketing vehicle but always remains focused on providing useful information.

Monday’s redesign will be, by my count, the fourth complete overhaul of the site since it launched in October 2002. More notably, just a year after SCOTUSblog unveiled a major redesign in which it moved away from the traditional blog format of presenting posts in reverse-chronological order, it is now returning to that format.

Among the changes that will be unveiled on Monday:

  • The front page “reverts” to a two-column, reverse-chronological format that more closely resembles a traditional blog format, as distinguished from the three-column format now in use that separates “Featured Posts” and “Other Posts.”
  • A new bar is added across the top of every page that highlights “Featured Content.”
  • There is more prominent integration of social media, particularly with buttons on each post to publish the post to Facebook, Twitter and Google Plus.
  • Key content now located in the lower portion of the center home page now moves to the right-hand column. This includes the calendar, “This Week at the Court,” “Upcoming Oral Arguments,” “Upcoming Petitions” and “Term Snapshot.”
  • The top-of-page navigational elements are restructured in ways that have them point more directly to different types of content.

By email, Tom Goldstein tells me that the most major new feature accompanying the redesign will be a “community” system for discussions. He also provided some insight on the reasons for the redesign:

In some respects, I decided that we needed to move backwards to move forwards. Our last platform was so unusual that I think more than half the readers didn’t really like having the two columns noting blog posts, though there are certainly loud exceptions. I think that platform educated the readers about the other features we have – like the case pages, calendar, and statistics – so those don’t have to be front and center, with everything on a single page, any longer. And the “featured content” level is a better solution to highlighting our most important posts (including because it appears on every page).

This platform is also evolutionary: there is a direct and immediate list of the current term’s merits cases; and the list of upcoming arguments is better than the previous upcoming merits cases, because you see a whole week and a summary of the issue.

These changes to the blog come in a year that also saw changes to Goldstein’s practice. In January, he left Akin Gump and returned to his former firm, Goldstein & Russell, citing client conflicts as his reason for leaving. Initially, it was unclear whether the blog — which he brought to Akin Gump — would follow him when he left. Fortunately for us readers, it did. this week published my article, Get Your Free Case Law on the Web. No sooner did it appear than I received an e-mail from a reader questioning how several of the sites discussed in the article could claim to have U.S. Supreme Court cases from before there was a Supreme Court. In fact, they claimed to have Supreme Court cases dating back to 1754 — even before the American Revolution.

I’ll admit, I felt like an idiot for not questioning this myself when I wrote the article. And when I e-mailed several of these sites to put the question to them, I heard back from only one, and the person who responded was not immediately sure of the answer.

Hoping to find the answer for myself, I first turned to one of the sites, Public.Resource.Org, to see this supposed 1754 Supreme Court case. I went to its Supreme Court library and made my way to Volume 1, Page 1 of the U.S. Reports. Sure enough, it is from September 1754. But while it is from a supreme court, it is not the Supreme Court. Rather, it is the Supreme Court of Pennsylvania.

I then turned to Google in search of a history of the U.S. Reports case law series. I found it easily, courtesy of Wikipedia. Here was the answer I was looking for:

None of the decisions appearing in the first volume and most of the second volume of United States Reports are actually decisions of the United States Supreme Court. Instead, they are decisions from various Pennsylvania courts, dating from the colonial period and the first decade after Independence. Alexander Dallas, a Philadelphia, Pennsylvania lawyer and journalist, had been in the business of reporting these cases for newspapers and periodicals. He subsequently began compiling his case reports in a bound volume, which he called “Reports of cases ruled and adjudged in the courts of Pennsylvania, before and since the Revolution”. This would come to be known as the first volume of “Dallas Reports.”

When the United States Supreme Court, along with the rest of the new Federal Government, moved in 1791 to the nation’s temporary capital in Philadelphia, Dallas was appointed the Supreme Court’s first unofficial and unpaid Supreme Court Reporter. (Court reporters in that age received no salary, but were expected to profit from the publication and sale of their compiled decisions.) Dallas continued to collect and publish Pennsylvania decisions in a second volume of his Reports, and when the Supreme Court began hearing cases, he added those cases to his reports, starting towards the end of the second volume, “2 Dallas Reports,” with West v. Barnes (1791). Dallas would go on to publish a total of 4 volumes of decisions during his tenure as Reporter.

When the Supreme Court moved to Washington, D.C. in 1800, Dallas remained in Philadelphia, and William Cranch took over as unofficial reporter of decisions. In 1817 Congress made the Reporter of Decisions an official, salaried position, although the publication of the Reports remained a private enterprise for the reporter’s personal gain. The reports themselves were the subject of an early copyright case, Wheaton v. Peters, in which former reporter Henry Wheaton sued then-current reporter Richard Peters for reprinting cases from “Wheaton’s Reports” in abridged form.

In 1874, the U.S. government began to fund the reports’ publication, creating the United States Reports. The earlier private reports were retroactively numbered volumes 1-90 of the U.S. Reports, starting from the first volume of Dallas Reports. As a result, decisions appearing in these early reports have dual citation forms; one for the volume number of the United States Reports, and one for the set of nominate reports. For example, the complete citation to McCulloch v. Maryland is 17 U.S. (4 Wheat.) 316 (1819).

Maybe I learned that back in the first year of law school. If so, I’ve long since forgotten. Now I know and this time, I doubt I’ll forget. But what we do know is that when these sites claim to have Supreme Court cases back to 1754, what they mean is that they have the full series of U.S. Reports.

There is now a Twitter feed for news from the U.S. Supreme Court. The blog Law Tech Review suggests that this feed comes directly from the court, which uses it to disseminate information about its latest activities. But I strongly doubt that the feed is from the court. If it is from the court, then why does it provide links to Supreme Court opinions posted at the Legal Information Institute instead of the opinions posted on the court’s own official site? And why does it link to only some but not all of the opinions issued so far this term? And why would the nation’s highest court choose to follow on Twitter only five feeds — The White House, the House, the Senate and two feeds owned by a man who appears to be equally consumed by U.S. politics and Christian fundamentalism? No, even though this feed bears the name of the Supreme Court, I don’t think the court is its source.

In honor of this first Monday in October, I have rounded up links to my previously posted items and columns that cover resources related to researching and tracking the Supreme Court.


Blog posts:

I’ve been so busy lately, I’ve neglected to plug the most recent episodes of my own podcast. So here is two weeks’ worth of Lawyer2Lawyer:

Download or listen to either program from the links above. (For downloading, free registration is required with the Legal Talk Network.)

This week on our legal-affairs podcast Lawyer2Lawyer, we discuss the implications of the Supreme Court’s punitive damages decision, Philip Morris USA v. Williams for big business and big tobacco. Joining my cohost J. Craig Williams and I are Michael Gerhardt, professor of law at UNC School of Law; J. David Prince, professor of law at the William Mitchell College of Law and co-author of Products Liability Prof Blog; and Mark Gottlieb, executive director of the Public Health Advocacy Institute at Northeastern University School of Law in Boston.

Way back in July and August 2005, I wrote a series of posts here about what I called the aging core of FindLaw. In the first post of the series, I started with this:

“FindLaw’s core is showing its age. Started in 1994 as an index of legal resources on the Internet, FindLaw used that index as the foundation on which to build a range of resources for legal professionals, businesses and consumers. But in recent years, FindLaw has let its index go to seed, failing to weed out dead URLs, update site descriptions or add new resources as they come along. The deterioration of FindLaw’s index is so extreme as to call into question its usefulness as a primary resource for legal professionals.”

As I noted then, FindLaw’s downturn seemed to coincide with its 2001 purchase by Thomson West. What I did not mention then was that with that purchase came the departure of FindLaw’s co-founder Tim Stanley. From my earlier reporting about FindLaw, I knew Stanley to be creative and energetic. I could only wonder whether his leaving contributed to FindLaw’s downturn. (In fairness to FindLaw, it responded quickly to my series and continues to make substantial revisions and enhancements to its ever-growing site.)

Meanwhile, Stanley started a little company called Justia. At first, Justia’s main focus was “legal marketing solutions” — creating law firm Web sites and blogs and providing search engine optimization. At the same time, Stanley and his staff worked on public-interest side projects such as the Stanford Copyright and Fair Use Center and Later came Justia’s Supreme Court Center, pulling together a searchable collection of Supreme Court cases along with Supreme Court resources from all over the Web.

Justia continued to add innovative features, such as BlawgSearch for searching law-related blogs and for searching law-related podcasts. Just last week, he launched Federal District Court Filings & Dockets, for searching and browsing federal dockets. Along the way, Justia added collections of links to Web legal resources arranged by legal practice areas and to legal research and law practice resources arranged under cases and codes, courts, states, law schools, legal forms and the like.

All of which seems to be bringing Justia back full circle to where FindLaw was when Stanley left — when FindLaw was still the premier portal for legal research. Look at Justia’s front page today and one is reminded of the FindLaw of old. More to the point, Justia today is becoming every bit as valuable as a legal portal as FindLaw once was. In fact, I would say it is one of the best free legal-research sites on the Web.