Inside the Supreme Court

Petition to Decision

Papers of Supreme Court Justices on Civil Rights Cases

David Achtenberg

Professor & Law Foundation Scholar

UMKC School of Law

Kansas City, MO 64110-2499

816-235-2382

AchtenbergD@umkc.edu

Migra v. Warren City School District

Timeline

          Coverage:  This page is a chronological timeline of the Court’s internal discussion and handling of Migra from the petitioner's earliest filings through the announcement of the decision in the case.  The timeline is divided into four sections which can be accessed through the buttons above or the ones in the yellow navigation area.

         Accessing Documents:  Each event is linked to all the documents in the Blackmun, Brennan, Marshall, Powell , and White files (as well as some documents from additional sources) that relate to that event.  To access a document, click on its link.  In the illustration below, you would click the link indicated by the red arrow to access the copy of Justice Powell's Opinion log that was found in his files.  (The links do not work on this illustration which is not from the Migra files.  To experiment, go to the timeline itself.) 

          Duplicate Documents:  When more than one copy of a document was found, I have included and linked all copies.  When a particular justice’s copy of a document contains additional annotations or markings, the link to that copy ends with an asterisk.   In the illustration above, the asterisks at the end of the circled entries indicate that both Justice Marshall and Justice Powell (or their clerks) made notes on their respective copies of the first draft of Justice Brennan's majority opinion.

          Abbreviations:  I have abbreviated the names of the justices, their clerks, and a few other persons.  A key to all abbreviations can be accessed by clicking the abbreviations button in the yellow navigation area. 

          Dates:  If the date of an event is unclear, estimated or derived, the date is underlined and the date is linked to an explanation. 

          Higher Resolution Copies:  Most of the documents are presented in comparatively small pdf files which should be adequate for most uses.  Please let me know if you think that any particular image needs to be replaced with a higher resolution version.  I will also be happy to send higher resolution copies (or original JPEGs) of any images to anyone who needs them.  For further information about how the documents were photographed, edited and converted to pdf files, click here to go to the Image Creation and Conversion Protocol Page. 

          Sources and Citation:  For an explanation of how to determine the original archive location of any document, click here to go to the Document Source Page.

	Migra Timeline—Part 1
	Deciding to Grant Review: First Filings to Grant of Certiorari (10/19/82 - 01/10/83 )
			Documents
	Event	Date	HAB	WJB	TM	LFP	BRW	Other
	Petition for Certiorari filed.	10/19/82						Docket Petition
	Brief in Opposition filed	11/24/82						Docket BIO
	Petition and Brief in Opposition distributed to chambers for consideration at the January 7, 1983 certiorari conference	12/01/82						Docket
	RLB (WHR Clerk) circulates memo to pool recommending denial of certiorari and pointing out that the issue is the same as it was in Castorr v. Brundidge (82-48) in which the court denied cert with BRW dissenting.	12/03/82	Memo RLB to Pool*			Memo RLB to Pool*
	RK (LFP Clerk) recommends denial of certiorari	12/09/82				Memo RLB to Pool*
	LFP marks pool memo indicating he will vote to deny.	12/09/82				Memo RLB to Pool*
	ASM (HAB Clerk) annotates RLB's pool memo and recommends granting certiorari due to circuit conflict and importance.  [transcript]	12/09/82	Memo RLB to Pool*
	Case discussed in certiorari conference.  WJB, BRW, HAB, and JPS vote to grant.  WEB, TM, LFP, WHR, and SOC vote to deny.	01/07/83	HAB Docket	WJB Docket		LFP Docket
	In certiorari conference, BRW expresses view case was correctly decided. WJB disagrees.	01/07/83	Memo RLB to Pool*			LFP Docket
	Order issued granting certiorari.	01/10/83						Docket
	Migra Timeline—Part 2
	Briefing, Argument & Decision on the Merits (01/11/83 - 10/14/83)
			Documents
	Event	Date	HAB	WJB	TM	LFP	BRW	Other
	Petitioner files brief on the merits.	02/22/83						Docket Petitioner Brief
	Joint appendix filed.	02/22/83						Docket Appendix
	NEA files amicus brief supporting petitioner	02/24/83						Docket Amicus NEA
	ACLU files amicus brief supporting petitioner	02/28/83						Docket Amicus ACLU
	Edwin F. Mandel Legal Aid Clinic files amicus brief supporting petitioner	02/28/83						Docket Amicus Mandel
	Record filed	03/05/83						Docket
	Certified original record and Court of Appeals proceedings received.	03/05/83						Docket
	Court extends time for filing of respondent's brief on the merits to April 7, 1983.	03/21/83						Docket
	Respondent files brief on the merits.	03/30/83						Docket Respondent Brief
	State of Maryland files amicus brief supporting Respondent.	04/07/83						Docket Maryland Amicus
	Briefs etc. circulated to chambers	07/08/83						Docket
	Case set for argument on October 11, 1983	08/15/83						Docket
	Petitioner files reply brief on the merits	08/19/83						Docket Reply
	KJW (BRW Clerk) sends memo to BRW recommending that the court hold that 28 USC 1738 requires applying state law preclusion rules in subsequent Section 1983 cases.  He suggests remanding to the district court for the determination of state law.	08/25/83					Memo KJW to BRW
	DAC (LFP Clerk) sends memo to LFP recommending that the court hold that 28 USC 1738 requires applying state law preclusion rules in subsequent Section 1983 cases. With some reservations, he suggests remanding to the district court for the determination of state law.  DAC suggests specifically reserving the issue of whether federal courts (under a "federal waiver rule") could give greater preclusive effect to state court judgments than might be  required by state law.	09/14/83				Memo DAC to LFP
	LFP annotates DAC's memo, generally agreeing with his recommendations.	09/15/83				Memo DAC to LFP
	Respondent files supplemental brief citing new authorities.	9/29/83						Docket Supplemental Brief
	KJW sends supplemental memo to BRW discussing the definition of "Cause of Action" for claim preclusion purposes under federal law.  KJW concludes that, if the federal definition is applied, plaintiff's cause of action would be barred.	10/1/83					Memo KJW to BRW(2)
	RAB (HAB Clerk) sends memo to HAB recommending affirming.  He argues that affirming is consistent with HAB's dissent in Allen v. McCurry because, unlike the plaintiff in Allen, Migra had the opportunity to file her entire case in federal court and chose not to do so.  RAB suggests that, unless the opinion is narrowly drafted, HAB should write separately.	10/06/83	Memo RAB to HAB
	RAB submits proposed questions for oral argument to HAB.	10/06/83	HAB Oral Argument Questions
	WWF (TM Clerk) sends memo to TM.  WWF recognizes that TM's likely preferred position (that prior state court judgments should be given issue preclusion but not claim preclusion effect in subsequent 1983 suits) is unlikely to prevail.  WWF outlines the basis for a dissent and an argument that, even on the majority's likely outcome, the case should be remanded for a decision by the district court for the determination of the state law preclusion issue.	10/07/83			Memo WWF to TM
	HAB prepares notes before oral argument outlining his position.  He will vote to affirm narrowly; but if the court affirms broadly, he will concur separately. [transcript]	10/08/83	Pre-Argument Notes
	LFP prepares notes before oral argument outlining three options: applying a federal waiver rule, deciding the state law issue, or remanding for the district court to determine and apply state law. [transcript]	10/08/83				Pre-Argument Notes
	Case argued.	10/11/83	HAB Oral Argument Notes Transcript of Notes			LFP Oral Arg Notes Transcript of Notes		Docket Oral Argument Audio & Transcript
	RAB (HAB Clerk) sends HAB post-argument memo discussing how to handle fact that district court opinion does not seem to be applying state preclusion law.  The memo also discusses BRW's questions suggesting that federal courts could give greater preclusive effect than state courts do.	10/11/83	Memo RAB to HAB
	KJW (BRW Clerk) sends memo to BRW arguing that district court did not apply state law and that the best disposition would be to remand to the district court for determination and application of state preclusion law.  KJW also argues against applying stricter preclusion rules in federal court than in state court.	10/12/83					Memo KJW to BRW (3)
	LFP writes memo to himself outlining basic facts of the case.	10/13/83				Memo LFP to Self
	WJB prepares notes for merits conference.  He argues for vacating and remanding to let the district court determine and apply state preclusion law.  He opposes adopting a stricter federal preclusion standard.	10/13/83		Notes for Conference
	The Court discusses the case in conference.  An apparent majority votes to affirm the lower court.  Other justices vote to vacate and remand the case to permit the lower court to determine and apply state preclusion law.   The positions of several justices were unclear, and may have changed during the conference.	10/14/83	HAB Conference Notes Transcript of Notes HAB Docket	WJB Conference Notes Transcript of Notes WJB Docket WJB Circ Record		LFP Conference Notes Transcript of Notes
	WEB assigns majority opinion to HAB	10/14/83	HAB Circ Record HAB Docket	WEB List of Opinion Assignments WJB Circ Record		LFP Circ Record
	Migra Timeline—Part 3
	Drafting the Opinions: From First Drafts to Final Opinions (10/15/83 - 01/23/84)
			Documents
	Event	Date	HAB	WJB	TM	LFP	BRW	Other
	WJB writes memo to JPS and SDO asking JPS to write the dissenting opinion.	10/17/83		Memo WJB to JPS & SDO
	JPS responds to WJB agreeing to write the dissent "[u]nless it develops that there are five votes to vacate and remand."	10/17/83		Memo JPS to WJB
	HAB writes WEB pointing out that he was in dissent in Allen and Kremer and therefore would be likely to write a far narrower opinion than others in the majority.  He suggests that the case be assigned to someone else and that he "exchange Migra with someone who has not yet started on his assignment."	10/17/83	Memo HAB to WEB	Memo HAB to WEB		Memo HAB to WEB
	WEB responds to HAB saying the assignment was based on "the ancient rule of 'the least persuaded,' and the need periodically for the 'good of the soul,' and what Judge Hutcheson called 'intellectual discipline.'"  He will not object if there is someone willing to trade.	10/17/83	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB
	HAB responds to WEB saying he will keep the case because he wants to avoid "repetition of the misassignment of No. 80 Original [Colorado v. New Mexico, 459 U.S. 176 (1982)]" which led to HAB being assigned no cases from the first week of arguments.  He emphasizes that he was not "the least persuaded."  He will do his best to write an opinion that will satisfy both the  Allen / Kremer majority and dissenters.  If that doesn't work, he will convert his opinion into a concurrence.  "All this has nothing whatsoever to do with your references to the 'good of the soul' and to what old Joe H. might have called 'intellectual discipline.'"	10/18/83	Memo HAB to WEB	Memo HAB to WEB	Memo HAB to WEB	Memo HAB to WEB	Memo HAB to WEB
	TM's clerk communicates to RAB (HAB Clerk) that TM prefers an opinion ordering a remand with instructions to apply state preclusion law.  TM's vote at conference to affirm was based on the assumption that the lower court had applied state law, but that assumption is now doubtful.	11/08/83	Memo RAB to HAB
	SDO's clerk communicates to RAB (HAB Clerk) that she disagrees with BRW's suggestion that federal courts can give a state court's decision broader preclusive effect than state law would give that decision.  While she is comfortable with either remand or affirmance, she slightly prefers remand.	11/09/83	Memo RAB to HAB
	HAB writes undated handwritten notes for opinion.  It is also possible that these notes were written later.  [transcript]	11/11/83	HAB Notes
	RAB (HAB Clerk) writes HAB memo suggesting that HAB write an opinion ordering a remand with instructions to apply state law.  RAB suggests that, by doing so, HAB may be able to cobble together five votes for a majority opinion.  He also suggests that such an opinion will reduce the risk that BRW could put together a plurality to endorse a rule permitting federal courts to give a state court's decision broader preclusive effect than state law would give that decision.	11/16/83	Memo RAB to HAB
	BWS sends memo to HAB attaching a copy of the state court opinion and apologizing for its illegibility.	11/23/83	Memo BWS to HAB State Ct Opinion
	HAB writes undated handwritten notes or checklist for his draft opinion, and crossed off items that were completed  [transcript]	12/08/83	HAB Notes
	HAB prepares draft of opinion and sends it to his clerk for comments. [The papers do not include a copy of this draft, but RAB's 12/10/83 memo to HAB refers to it.  Based on HAB's First Printed Draft and RAB's 12/10, 12/12, and 12/14 memos, the editor has prepared a reconstructed draft]	12/08/83	Memo RAB to HAB Reconstructed Draft
	RAB (HAB Clerk) writes memo to HAB suggesting various changes in HAB's draft opinion.  He suggests consolidating Part II (explaining that § 1738 requires the application of state preclusion rules) and Part IV (explaining that those rules apply to claim preclusion as well as issue preclusion).  He also suggests  deleting discussion that leaves open the possibility of applying federal preclusion law.  He offers to write a revised draft incorporating his suggested changes.	12/10/83	Memo RAB to HAB
	RAB (HAB Clerk) prepares a revised draft of the opinion and sends it to HAB.  He suggests deleting much of the discussion of Ohio preclusion law. [The papers do not include a copy of this revised draft.]	12/12/83	Memo RAB to HAB
	RAB (HAB Clerk) prepares a second revised draft of the opinion and sends it to HAB.  [The papers do not include a copy of this revised draft.  Based on the contents of this memo, the draft was probably quite similar to the first draft circulated on 12/16]	12/14/83	Memo RAB to HAB
	HAB circulates first draft opinion.	12/16/83	HAB 1st Draft	HAB 1st Draft*	HAB 1st Draft*		HAB 1st Draft
	BRW writes HAB indicating he will be drafting separate opinion expressing view he stated during the conference.	12/16/83	Memo BRW to HAB	Memo BRW to HAB	Memo BRW to HAB	Memo BRW to HAB*	Memo BRW to HAB
	WJB annotates HAB's draft indicating his count that 7 had voted to affirm and that WJB, JPS, and SDO had voted to vacate.  He also indicates he will join the opinion.	12/16/83		HAB 1st Draft*
	TM annotates HAB's draft ambiguously indicating he might join.	12/16/83			HAB 1st Draft*
	SDO sends memo to HAB (no copies to conference).  She indicates she can join, but raises a question about whether § 1738 applies to defendants as well as plaintiffs.	12/16/83	Memo SDO to HAB
	HAB annotates SDO memo with notes apparently for his 12/19 memo to SDO.  [pop up transcript]	12/19/83	Memo SDO to HAB
	RAB (HAB Clerk) sends memo to HAB commenting on SDO's concerns and proposing a response.	12/19/83	Memo RAB to HAB
	HAB sends memo to SDO (no copies to conference) explaining why he limited his discussion to plaintiffs and why he omitted any discussion of BRW's position.  He indicates that, in light of the fact that he was "misassigned" the opinion, he is trying to draft an opinion that will be supported by a majority.   He proposes some minor changes	12/19/83	Memo HAB to SDO
	SDO sends memo to HAB (no copies to conference).  She understands the need to keep a majority and will join if HAB makes his suggested minor changes.	12/19/83	Memo SDO to HAB
	WHR writes HAB indicating that he will await BRW's writing.	12/19/83	Memo WHR to HAB	Memo WHR to HAB	Memo WHR to HAB	Memo WHR to HAB
	HAB circulates second draft of his opinion.  It incorporates the changes indicated in his 12/19 memo to SDO	12/20/83	HAB 2nd Draft	HAB 2nd Draft	HAB 2nd Draft*	HAB 2nd Draft*	HAB 2nd Draft
	TM annotates HAB's second draft indicating that he may have initially considered awaiting BRW's writing, but decided to join HAB's opinion.	12/20/83			HAB 2nd Draft*
	JPS writes HAB that he will join the opinion.  He suggests that HAB eliminate the last paragraph of note 7, but leaves it to HAB's discretion.	12/20/83	Memo JPS to HAB	Memo JPS to HAB	Memo JPS to HAB	Memo JPS to HAB	Memo JPS to HAB
	LFP writes HAB that he will await BRW's writing and that he would like to apply a federal rule but wants to see how it "writes out."	12/20/83	Memo LFP to HAB	Memo LFP to HAB	Memo LFP to HAB	Memo LFP to HAB	Memo LFP to HAB
	SDO writes HAB stating that she will join his opinion.	12/20/83	Memo SDO to HAB	Memo SDO to HAB	Memo SDO to HAB	Memo SDO to HAB	Memo SDO to HAB
	TM writes HAB stating that he will join HAB's opinion	12/20/83	Memo TM to HAB	Memo TM to HAB	Memo TM to HAB	Memo TM to HAB	Memo TM to HAB
	WJB writes HAB stating that he will join HAB's opinion	12/20/83	Memo WJB to HAB	Memo WJB to HAB	Memo WJB to HAB	Memo WJB to HAB	Memo WJB to HAB
	WS writes HCL enclosing the December 20 draft opinion.	12/21/83	Memo WS to HCL
	HCL writes HAB enclosing draft syllabus	12/21/83	Memo HCL to HAB
	HAB writes HCL approving draft syllabus with minor changes.	12/21/83	Memo HAB to HCL
	HAB writes JPS indicating that he will drop the last paragraph in note 7 unless others object.	12/21/83	Memo HAB to JPS	Memo HAB to JPS	Memo HAB to JPS	Memo HAB to JPS	Memo HAB to JPS
	Draft of Syllabus from HCL	12/23/83	Draft Syllabus
	BRW writes memo to LFP and WHR (no copies to conference) indicating that he no longer intends to write a dissent expressing the view that federal courts are free to give greater preclusive effect to state court decisions that the states courts would give.  Although commentators and lower courts have treated it as an open issue, his research has uncovered a line of Supreme Court cases that are contrary to his position.  Without a majority to overrule those cases, and will instead write a concurrence.	01/11/84				Memo BRW to LFP & WHR	Memo BRW to LFP & WHR
	LFP annotates BRW's memo indicating that he will join BRW's proposed concurrence	01/11/84				Memo BRW to LFP & WHR
	BRW marks passages in his 1/11/84 memo apparently for inclusion in his concurring opinion.	01/11/84					Memo BRW to LFP & WHR (marked)
	BRW circulates typed 1st draft of concurrence	01/12/84		BRW Typed Draft	BRW Typed Draft		BRW Typed Draft
	BRW circulates printed 1st draft of concurrence	01/12/84	BRW 1st Draft	BRW 1st Draft	BRW 1st Draft	BRW 1st Draft*	BRW 1st Draft BRW 1st Draft nd
	WHR writes HAB indicating he will join HAB's opinion and stating that he would prefer to omit the third paragraph of note 7.	01/12/84	Memo WHR to HAB	Memo WHR to HAB	Memo WHR to HAB	Memo WHR to HAB	Memo WHR to HAB
	HAB circulates 3rd draft of opinion omitting third paragraph of note 7.	01/12/84	HAB 3d Draft	HAB 3d Draft	HAB 3d Draft		HAB 3d Draft
	LFP writes HAB stating he will join HAB's opinion and BRW's concurrence.  In his copy to BRW only, he adds a PS "Please add my name to your concurrence."	01/12/84	Memo LFP to HAB	Memo LFP to HAB	Memo LFP to HAB	Memo LFP to HAB*
	BRW circulates 2nd draft concurrence noting that Justice Powell joins.	01/13/84		BRW 2d Draft	BRW 2d Draft		BRW 2d Draft BRW 2d Draft nd
	WS writes HCL reporting which justices had (at that point) joined various opinions.	01/16/84	Memo WS to HCL
	WEB writes HAB stating he will join HAB's opinion and will also join BRW's concurrence.	01/19/84	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB	Memo WEB to HAB
	WEB writes BRW (no copies to conference) stating he will join BRW's concurrence.	01/19/84					Memo WEB to BRW
	WS writes HCL with final lineup of judges.	01/19/84	Memo WS to HCL
	HCL sends new draft of syllabus to HAB with final lineup of judges included	01/19/84	Syllabus Draft
	HAB prepares and revises a draft for his oral announcement of the decision.	01/23/84	HAB Announcement Draft
	HAB delivers opinion for unanimous court.  BRW delivers concurring opinion joined by WEB and LFP	01/23/84	HAB Announcement Draft			Partial Slip Opinion		Docket
	MigraTimeline—Part 4
	After the Decision: Post-Decision Events  (01/23/84 - )
			Documents
	Event	Date	HAB	WJB	TM	LFP	BRW	Other
	HCL writes HAB regarding possible editorial changes	02/02/84	Memo HCL to HAB
	HAB writes memo to conference regarding Tompkins v Garguil, the only case that was being held for Migra.  HAB recommends granting, vacating, and remanding in light of MIgra.  [The court does so on 02/21/84.]	02/03/84	Memo HAB to Conf
	HCL writes BRW regarding possible editorial changes in concurrence.	02/14/84					Memo HCL to BRW
	BRW writes HCL accepting proposed changes	02/15/84					Memo BRW to HCL
	Judgment is issued.	02/22/84						Docket
	Martin Guggenheim (clinical professor at NYU) sends HAB a copy of an article he has written that discusses Migra.	12/23/84	Article