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SCOTUS Notes

Illuminating the Black Hole of Supreme Court Decision-Making
December 19, 2019

Portrait: Professor Timothy R Johnson

Portrait: Professor Timothy R Johnson
Timothy Johnson. Photo by Phuong Tran, CLAgency student

While in graduate school, studying under the preeminent judicial scholar Lee Epstein, Professor Timothy R. Johnson first caught a glimpse of the private conference notes of US Supreme Court justices. These notes, taken while only the nine justices are in the room discussing cases they will ultimately decide, with no lawyers or clerks or anyone else present, offered a way to overcome the significant black hole facing scholars trying to understand Supreme Court decision-making. “[This] behind-the-scenes stuff is what interests me,” says Johnson.

When the US Supreme Court decides a case, almost all of the decision-making process takes place in secret. Most secretive are the conference discussions that take place for each case. The only records kept during these meetings are the justices’ handwritten notes, which are not publicly available until they leave the Court, and then they are accessible only if they decide to open these copious archives. It is these notes Johnson first caught a glimpse of when, almost 25 years ago, he began researching in the Library of Congress.

A Daunting Task

Even though many justices’ notes are available in the Library of Congress, the near-impossible task of transcribing the tens of thousands of notes, usually handwritten in cursive and sometimes terribly difficult to read, was too daunting for Johnson. Once he became a professor at the University of Minnesota, he suggested studying the conference notes as a dissertation project to multiple graduate students but each of them decided, like he had, that the data-collection process would be far too difficult and time-consuming.

While Johnson has become a leading expert in how oral arguments impact decision-making at the Supreme Court (publishing two books on the topic), studying the conference notes— something no one else had done—always bubbled up in the back of his mind. Indeed, according to him, studying these conference notes is crucial for scholars to fully understand how law and legal policy are made by the US Supreme Court.

A Job for the Citizen-Scientist

But how would he go about overcoming this intimidating task? Younger graduate students don’t have as much experience reading cursive handwriting, so Johnson floated the idea of recruiting volunteers from retirement homes who may be able to read handwriting. 

Then one day, he heard about an information session run by colleagues in the University of Minnesota Department of Physics and Astronomy about a crowd-sourcing, or people-powered, research platform called Zooniverse. After the session, Johnson approached the presenter, who told him that, while they had never worked with a social scientist before, his project was exactly the type of thing for which the platform was created.

Partnering with Zooniverse and winning a $400,000 National Science Foundation Grant allowed Johnson to create his SCOTUS Notes Project along with Ryan C. Black (BA ‘04) — a former CLA undergraduate and now a professor at Michigan State University. Now anyone in any part of the world can be part of transcribing the almost 50,000 pages of Supreme Court conference notes stored in various archives throughout the nation. Engaging citizen archivists and transcribers allows for greater efficiency and accuracy because it uses multiple coders and an algorithm that determines the most likely words written in each note. 

With the help of citizen scientists acting as transcribers, Johnson and Black will be able to write the definitive book on the Supreme Court conference discussions. So far more than 3,800 volunteers have participated in the project completing about 6,500 pages worth of transcriptions. 

The work that the volunteers and Johnson and Black are engaged in will influence scholarship and policy on a wide-ranging basis. Historians and scholars of the law will greatly benefit from illuminating the black hole of the secret decision-making process of the highest court in the United States.