Certiorari Studies and the Blackmun Digital Archive

For those who may not be aware of it, I wanted to call attention to a fantastic resource put together by Lee Epstein, Jeffrey Segal, and Harold Spaeth, the Digital Archive of the Papers of Justice Harry A. Blackmun (available here). For anyone interested in integrating certiorari denials in their research, this is a wonderful resource. It provides access to the docket sheets, showing how the Justices voted individually on certiorari, Justice Blackmun’s annotated copy of the cert pool memo, and, occasionally, other documents that Justice Blackmun attached.

The archive has some limitations. Most notably, it is for the 1986-1993 Terms only. In addition, it only provides Justice Blackmun’s records, so it doesn’t provide access to records that any of the other Justices may have maintained. It also occasionally has images that cut off parts of the text. But for someone looking to examine a pattern of certiorari denials during that time frame (or a particular certiorari denial), it is an excellent “getting started” resource. From the comfort of one’s own desk, one can get access to the vote, the cert pool memo, and—from other electronic sources like Westlaw—the petition-stage filings. If something interesting emerges, it is always possible then to search out other, less accessible sources.

To give readers a more concrete sense of what the archive has to offer, I give links to some documents after the jump.

To provide a concrete example, I decided to search for—and provide links to—a group of certiorari decisions that I have some interest in, cases challenging the military’s pre-Don’t Ask Don’t Tell ban on gay servicemembers (all post-DADT cert decisions post-date the archive).  This is not an area in which I have any pending research project, or even any thoughts regarding a research question, but it is an area in which the Court has historically taken a hands-off approach.

Links to the individual documents are below, but as a teaser, here is the tidbit that was of the most interest to me, personally: In the case of United States v. Watkins, No. 89-1806, Justice Scalia (not known for his pro-gay stances, generally) has a draft dissent from a proposed grant/vacate/remand of a gay servicemember’s rare victory below, that begins as follows:

“The U.S. Army has regulations forbidding the enlistment of homosexuals. It nonetheless permitted Sergeant Perry Watkins, whom it knew to be homosexual, to remain in the service for 13 years, twice permitting him to reenlist and consistently giving him high performance evaluations. In 1982, however, it put an end to the career in which Watkins had invested so much of his life. It refused to allow Watkins to reenlist for his fourth term of service solely because he was a homosexual.”

Ultimately, Justice O’Connor switched her vote in response to Scalia’s arguments—and the Court denied certiorari and left the gay servicemember’s victory intact.

For more, here are the links:

Woodward v. United States, No. 89-344 Docket Sheet
Woodward v. United States, No. 89-344 Preliminary (Pool) Memorandum
Ben-Shalom v. Marsh, No. 89-876 Docket Sheets
Ben-Shalom v. Marsh, Preliminary (Pool) Memorandum (with additional cert-stage documents)
United States Army v. Watkins, No. 89-1806 Docket Sheet
United States Army v. Watkins, No. 89-1806 Preliminary (Pool) Memorandum (with additional cert-stage documents)
Cheney v. Pruitt, No. 92-389 Docket Sheet
Cheney v. Pruitt, No. 92-389 Preliminary (Pool) Memorandum

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1 Response

  1. Babak Siavoshy says:

    That is a fascinating find!