Did the lawyer appear before the High Court?

Reader Jane Irish Nelson posed a great question to The Legal Genealogist: “My great-grandfather, James Tipton Cutler (1869-1933), a lawyer in Evansville, Indiana, supposedly argued a case before the Supreme Court. How can I find out if this is true?”

For most families who have a lawyer lurking somewhere in the past, this question is a little bit like the story of the Native American princess so many families have passed down: so few attorneys in the past were admitted to practice before the U.S. Supreme Court — and of those so few ever actually argued a case before the High Court.

In general, historically, lawyers were admitted to practice only in the courts where they were going to appear. Lawyers from places far distant to Washington, D.C., normally didn’t bother seeking admission to the Court’s bar.

And, historically, far fewer cases actually were ever heard by the Supreme Court than the many lower federal courts and, of course, the many many state courts — so you’re a whole lot more likely to find records of your family lawyer in other courts than in the Supreme Court of the United States.

Even today, when it’s much easier to get admitted, and many lawyers go for it, for the most part, getting admitted to the bar of the Supreme Court is something done because it looks good on a resume, not because the lawyer is actually going to argue a case.¹

Because only about 100 cases are heard each year, and because experience really counts in these high-stakes cases, most cases that get to the High Court go to experts in Supreme Court practice. It’s estimated that, in a third of the cases, only former employees of the Solicitor General’s Office who used to represent the United States in appellate cases actually end up arguing before the Court.²

There isn’t any readily available published list of attorneys who, over the decades and now centuries, have been admitted to practice before the Supreme Court. Most publications that deal with the topic at all focus on some narrow slice or issue. The 11 articles published in the Journal of Supreme Court History between 1976 and 2013, for example, deal with subjects like female attorneys and the first African-American to be admitted.³

The Supreme Court itself does publish lists on its website of attorneys admitted to its bar who participated in a particular case argued before the Court. But the lists only cover the period from 2009 through 2012 — and as each volume of the official United States Reports is published with the Court’s opinions the list for that volume is deleted from the website.⁴

So… how do you find out whether — in your family’s case — the lawyer ever really did argue a case before the U.S. Supreme Court?

There’s an easy way… and a harder way.

We’ll talk about the harder way first. Harder only because it’s not accessible when you’re sitting at home in your bunny slippers staring at a computer screen and wanting the answer now.

The National Archives hold the Records of the Supreme Court of the United States in Record Group 267, and with very few exceptions the records are at the main Archives building in downtown Washington, D.C. Among those records: the Records of the Office of the Clerk. And among those records: Indexes to names of attorneys admitted to the bar of the Supreme Court, 1790-1955; and Attorney rolls, 1790-1961.⁵

So a road trip to Washington and using the index and rolls will get you an answer as to whether your guy (and it was a guy until modern times…) was ever admitted to the Supreme Court bar.

You can also check out NARA’s microfilm publication M-217, Attorney Rolls of the U.S. Supreme Court, 1790-1951, available at a variety of regional archives as well as at Archives I downtown.⁶ The microfilm is well worth going for: the records contain not just the names but even the signatures of attorneys admitted to the court from 5 February 1790 through 4 June 1951.

And once you find out if your guy was ever admitted, you can then check to see whether he ever actually argued a case before the Court. That mostly likely will require reviewing the dockets of the Court, available also on microfilm,⁷ for the years when he was admitted.

The easier way is to check and see whether he was ever listed as one of the attorneys in a published opinion of the U.S. Supreme Court. Start by using any of the free online services that republish those opinions. Places like Justia.com’s U.S. Supreme Court collection or FindLaw.com’s Supreme Court Opinions collection or Google Scholar (that hyperlink is limited to U.S. Supreme Court decisions).

You’ll need to be careful not to miss the result you want. Searching for the full name of the attorney in this case — James Tipton Cutler — turns up no results at all. Searching for Cutler alone turns up so many results, it’s easy to get discouraged and give up. And on at least one of the free services, Justia.com, it turns out that some of the republished materials leave out the names of the lawyers completely, so you might be misled by using that database alone.

But with persistence (and smart use of search limiters), in Jane’s case, those databases turned up James T. Cutler as one of the attorneys for the appellees in a case called Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., decided in 1926. You can read the opinion anywhere online: it’s an interesting little case involving a wharfboat that sank in the Ohio River at Evansville, Indiana, in 1922, causing damage to the cargo.

And once you have the name of the case, it’s well worth it to go back and see what you might be able to find in a search using the case name as a search term. In many cases, you’ll only find other cases that refer to the opinion for some legal point it discusses or decides.

But when it comes to the U.S. Supreme Court, it’s possible there may be more. And in this case?

Oh my.

Turns out there is an entire volume — 220 pages of materials — published by the legal publisher Gale in its U.S. Supreme Court Records series — on this particular case.⁸ And the book includes the transcript of the record in the courts below, the petitioner’s brief, the appellee’s (responding party’s) brief and the reply brief of the petitioner.

The volume, with the title Evansville & Bowling Green Packet Co v. Chero Cola Bottling Co U.S. Supreme Court Transcript of Record with Supporting Pleadings, appears to be available as a paperback through Barnes & Noble.

So Jane now has the Supreme satisfaction of knowing that she really does have a Supreme Court argument in her family’s history … a case her great grandfather helped win.

SOURCES

Image: Carol M. Highsmith, Supreme Court Building, Washington, D.C. (1976-2006), Carol M. Highsmith Collection, Library of Congress Prints & Photographs Division.