As I realized in responding to a comment from John Harshman, my discussion of the appeal in the Scopes case (“Flubbing the Appeal in Scopes” part 1 and part 2) neglected to describe the legal arguments of Scopes’s brief. Harshman asked, “Wasn’t it foolish of the appellants to present any argument other than a constitutional one? The goal, after all, was to reach the Supreme Court. If the appeal were granted for any other reason (as it was), they’re screwed.” I replied, “the route to the Supreme Court wasn’t clear … [R]emember that this is two decades before Everson v. Board of Education, the Supreme Court decision establishing that the Establishment Clause of the First Amendment is binding on the states. The appellant’s brief therefore focused on Tennessee constitutional law—although not exclusively; the federal constitution was invoked at least twice.” I added, “Now I may have to write a piece about the details of the brief itself, which I neglected somewhat here.” So it would seem!
Conveniently, there’s a copy (big PDF) of the brief posted at the Clarence Darrow Digital Collection of the University of Minnesota’s Law Library. The original seems to have passed through Arthur Garfield Hays’s hands, since a handwritten note on it says, “Dear Sam, Many corrections have been made on this. The last proof. AGH.” The “Sam” was probably Samuel J. Rosensohn, who, along with Walter H. Pollak, was listed on the printed version of the brief along with John Neal, Clarence Darrow, Dudley Field Malone, Frank Spurlock, Frank McElwee, Robert S. Keebler, and Hays; Rosensohn’s and Pollak’s names are added by hand to the list in the proof here. Neal, Darrow, Malone, and Hays all represented Scopes at the trial; McElwee was a former student of Neal’s who played a minor role in the trial; Spurlock and Keebler were Tennessee lawyers interested in the case. Rosensohn and Pollak were both high-powered New York City lawyers of the day with keen interests in civil rights cases.
The “assignment of errors” in the appellant’s brief refers repeatedly to the “motion to quash the indictment” and the “demurrer thereto” and “the defendant’s motion for a new trial”: what are those? On the second day of the trial, July 13, 1925, Neal asked the court to quash the indictment for a long list of reasons. The resulting arguments occupied the rest of the day, culminating with Darrow’s famous peroration warning, “we are marching backward to the glorious ages of the sixteenth century.” Apparently unmoved, on the fourth day of the trial, July 15, 1925, Judge Raulston overruled the defense’s motion to quash the indictment. Neal promptly filed a demurrer, reiterating the arguments of the motion to quash. Then, on July 21, 1925, after the verdict was rendered, Neal and McElwee promptly filed a request for a new trial, which largely reiterated (again) the arguments of the motion to quash. Equally promptly, Judge Raulston denied that request, and it was that denial that, strictly, was appealed to the Tennessee Supreme Court.
With those incidents from the trial in mind, I’ll transcribe the headings in the “assignment of errors” from the brief submitted to the Tennessee Supreme Court by Scopes’s lawyers here—there are ten in all—and offer running commentary. (Because these are headings, they are set all in capitals; for the sake of legibility, I’ve transcribed them as regular text, so except for the capitals at the beginning of sentences, the capitalization is inferred.)