Should Supreme Court Justices Be Required to Release Their Papers?

Jill Lepore has a long article in the New Yorker about what happens to the papers of a Supreme Court justice when they did. In short, whatever the justice wants to happen to them. Some contribute their personal papers to a university library, others release absolutely nothing.

The papers of Supreme Court Justices are not public records; they’re private property. The decision whether to make these documents available is entirely at the discretion of the Justices and their heirs and executors. They can shred them; they can burn them; they can use them as placemats. Texts vanish; e-mails are deleted. The Court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away. Some Justices have destroyed virtually their entire documentary trail; others have made a point of tossing their conference notes. “Operation Frustrate the Historians,” Hugo Black’s children called it, as the sky filled with ashes the day they made their bonfire.

This fall, the Supreme Court issued a number of rulings that came as something of a surprise—refusing to hear a series of cases involving same-sex marriage, for instance—but there’s no reason to believe that historians will ever really know how the Court arrived at these decisions. Very few of the documents that could genuinely illuminate them will survive. The Federal Records Act, passed in 1950, specifically excludes the Supreme Court. In 1978, in the wake of Watergate, Congress passed the Presidential Records Act, which made the papers of American Presidents the property of the federal government; destroying them is a federal crime. There is no judicial equivalent. The Supreme Court’s official papers—formal filings, such as petitions, opinions, and briefs; and official records, such as audio recordings, transcripts, and governmental, case-related correspondence—end up at the National Archives. The papers of the Justices, if they save them, tend to go to the Library of Congress, to their alma maters, to their home towns, or to some other place they happen to like. They’re scattered across the country, and, by the time they arrive, they have, as a rule, been carefully culled…

Even judges who start out thinking they’d like to make their papers available tend to change their minds. After William Rehnquist graduated from Stanford Law School, he clerked for Frankfurter’s colleague Robert Jackson. Early in his career, Rehnquist told the legal historian Stanley Katz that he thought there ought to be a requirement that all judicial papers be given to the Library of Congress. In 1971, when Rehnquist was nominated to the Court, his nomination was nearly defeated by the discovery, among Jackson’s papers, of a memo that Rehnquist had written in 1952, on the subject of segregation. In 1986, the memo haunted Rehnquist’s confirmation as Chief Justice, too. Not long afterward, the legal historian Melvin Urofsky, who was researching a book about Johnson v. Santa Clara, a 1987 affirmative-action case, happened to be chatting with William Brennan at a party. “Could I look at your folder on this case?” Urofsky asked Brennan, half joking. “Sure,” Brennan said. Urofsky went to Brennan’s office, and Brennan’s secretary gave him a thick folder. (Brennan had written the opinion for a 6–3 majority, upholding a company’s decision to hire a woman over a man; Rehnquist joined a dissent written by Antonin Scalia.) After Urofsky’s book came out, he went back and asked Brennan for a folder relating to another case. “I’m sorry but I can’t,” Brennan said. The Chief Justice had read Urofsky’s footnotes, Brennan said. “Rehnquist had a fit.”

Cases decided by the Rehnquist Court include Bush v. Gore, one of the most momentous actions ever taken by the Court. In the twenty-first century, the Supreme Court wields far more power than it did in the eighteenth. Is judicial secrecy defensible in an era of judicial supremacy? Fair-minded arguments can be made on both sides. But, so far, the question hasn’t been debated; it’s been tabled. Rehnquist died in 2005. In 2008, his papers—nearly nine hundred boxes—went to the Hoover Institution. More than five hundred will remain closed until the last Justice who served with Rehnquist dies. History is patient. But perhaps the time has come to ask, How long is too long to wait?

It’s an interesting question and I don’t necessarily have an answer to it. What I do know is how incredibly valuable those papers are for historians and for the public’s understanding of the court (even if it comes long after the fact). Justice Blackmun’s papers were the source for two books that revealed many very important things about his time on the court. It is only because of those papers, for instance, that we learned that the Court nearly overturned Roe v Wade in 1992 (they had the five votes to overturn, but O’Connor and Souter lobbied Kennedy to change his vote and he did).

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  • Modusoperandi

    Jill Lepore has a long article in the New Yorker about what happens to the papers of a Supreme Court justice when they did.

    Did what?

  • Anthony K

    Did done died, I reckon.

  • Pierce R. Butler

    Let the Justices’ private lives remain private.

    On the job, they should all wear body cams – outside the stupid black robes.

  • Mr Ed

    Any work I do as part of my job belongs to my employer not me. I think the court should create a set of guidelines about when papers become public. Such as, twenty years after a justice leaves the court all papers will become freely available, the former justice or a representative of the executive or legislative body can petition the court to change this time frame.

    The work was done on the taxpayers dime I think we should be able to see how that money was spent.

  • busterggi

    The SCOTUS, black robes & all, are the supposedly secular version of religious leaders – answerable to none but their corporate deities.

  • eric

    More than five hundred will remain closed until the last Justice who served with Rehnquist dies. History is patient. But perhaps the time has come to ask, How long is too long to wait?

    I would be okay with that as the general rule: all files preserved, but no case files released until the last justice who was involved in that case has died.

  • hunter

    Any bets on whether Scalia leaves his to the Vatican?

  • Crimson Clupeidae

    I agree that they are paid through public funds, therefore, any papers written as part of official court deliberations should be public.

    I realize this might mean that some of what goes on now behind closed doors would simply move to the country club or whatever private venue the judges choose, but I still think it should implemented.

    The time frame is more questionable. They could always opt to release their writing when they retire, or at any point, but otherwise, it should be some set time after they die, and the records should become part of the library of congress.

  • lorn

    I don’t know.

    On one side these are public employees performing a public duty and that suggests everything done in office should be documented and free for public viewing.

    On the other hand, one of the easiest ways of quitting sausage is to see how it is made. Humans are messy, flighty, and inconsistent in the extreme. The smallest thing might be enough to shift a vote and cause a historically important case to go this way or that.

    It might be more reassuring to simply take the final result as read, and dissented against, instead of getting into the infinite hair aspect of the chaotic and sensitive to initial condition aspects of nine human minds interacting with each other, and the surrounding world.

  • doublereed

    I don’t understand the purpose of a time delay. Obviously if they are determining how to interpret the law, we should know how they’re coming to that conclusion. I don’t see anything sensitive about such information, and therefore we should err on the side of transparency.

    I thought time delays are only for secret documents or ongoing events.