by Michael Dorf
A recent article in the New Yorker by Jill Lepore addresses a 43-year-old mystery: Who stole the most interesting and important of the papers of Justice Felix Frankfurter from the Library of Congress? (Spoiler Alert: Lepore doesn't know but she has some hypotheses and I'll reveal them here.)
Lepore initially considers as her prime suspect journalist and author Roger Newman, but she more or less takes Newman's word for it that he wasn't the culprit. The reader learns that in 1973 Newman testified before a federal grand jury that was investigating the papers caper. He tells Lepore that he had nothing to do with the papers' disappearance and didn't/doesn't know who was behind it. He wasn't indicted back then, Lepore reports, because the FBI "had no proof tying [Newman] to the theft."
I have no inside information about the case--I swear it wasn't me; I was seven years old in 1971--but I hasten to add that it strikes me as implausible that Newman did it. He is the author of an excellent biography of Hugo Black, and the eidtor of the Yale Biographical Dictionary of American Law. I wrote three entries for the latter (on Justice Anthony Kennedy, Judge Richard Posner, and Judge Stephen Reinhardt), and I've known Newman for some years. He has always struck me as a scholar and reporter who digs deep, but I have no reason to think he would resort to theft. And other than noting that, at 22, Newman wrote Alexander Bickel (a designated gatekeeper of some of Frankfurter's papers) to say that he (Newman) was a graduate student when he was in fact a college senior, Lepore offers nothing to suggest that Newman is the sort of person who would commit an act of major dishonesty.
In fact, Newman is something of a MacGuffin in Lepore's narrative. Although she never reaches a conclusion about who took the papers, she drops more than a few hints that the real villain was William Rehnquist or someone working with or for him. At the critical time, Rehnquist's nomination for Associate Justice was in peril due to the release of a memo he had written as a law clerk to Justice Robert Jackson, urging the latter to uphold Plessy v. Ferguson in Brown v. Board of Education. Both in 1971/72 and again in 1986, when Rehnquist was nominated to be Chief Justice, he defended the memo on the ground that it expressed what he took to be Jackson's tentative view of the case, not his own.
This was always a dubious claim. The memo is written in the first person ("I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues, but I think Plessy v. Ferguson was right and should be reaffirmed.") Justice Jackson's then-secretary and other law clerks contested the attribution to Jackson of the pro-Plessy views. Everything else we know about Jackson--Nuremberg prosecutor; Korematsu dissenter; etc.--leads to the conclusion that he would not have been on the wrong side of Brown. And a 2012 law review article by Professors Brad Snyder and John Barrett reconstructs a 1955 letter from Rehnquist to Frankfurter indicating that the earlier memo in fact reflected Rehnquist's views, not Jackson's. But the 1955 letter appears to be among the documents that were stolen from the Library of Congress in 1971. Lepore obliquely suggests that Rehnquist or an ally either inside or out the Nixon Administration stole the Frankfurter papers to secure Rehnquist's confirmation.
Is that claim plausible? As I've just noted, there was plenty of evidence already that Rehnquist was pro-Plessy as a law clerk, as well as evidence of his voter suppression efforts in Arizona that should have been enough to alert interested Senators that he was no friend to minorities. Given their willingness to overlook that evidence, they also would have likely overlooked the 1955 letter to Frankfurter. Still, that doesn't mean that paranoid dirty tricksters in the Nixon Administration wouldn't have tried to do whatever they could to limit the damage. And stealing papers from the Library of Congress sounds like the sort of thing that Nixon's henchmen might have done. But in the end it's all just speculation.
And that fuels Lepore's bigger point--which is to criticize the current system for dealing with the papers of retired and deceased Justices: Their access to the public is left to the discretion of each individual Justice. Moreover, due in large part to Rehnquist's own unhappiness with how the Marshall and Blackmun papers were released, increasingly Justices are choosing to make their papers unavailable to the public for a very long time. By contrast with presidents, whose papers and records are designated public property by statute, and who are thereby obliged to preserve them, the papers of Supreme Court Justices are considered private. Justices may dispose of them as they wish.
Lepore is unhappy with this state of affairs, chiefly because it slights the claim of history. I ultimately agree with her view, but I think it requires some unpacking.
Lepore does not say that the work of the Court should be completely transparent. Why not? We have sunshine laws and public meeting laws for other government agencies. Is the work of the Court so different as to justify a regime of presumptive secrecy? I'm not sure what the right answer to that question is, but I would note that the concern is harder to dismiss than one might think.
The usual response to a question of this sort is to note that the core business before the Court is conducted in public. Briefs are available online and the Court's oral arguments are open to the public (albeit not televised). Moreover, the Court provides the public with reasoned explanations for its decisions in the form of published opinions, concurrences, and dissents.
But that's a pretty flimsy response when you scrutinize it. For one thing, the Court does not provide reasons for all of its decisions. Cert denials and grants don't come with an explanation, even though they may be of intense interest to the public. Lepore gives the example of the same-sex marriage cert denials in October.
In addition, legal realists and political scientists have long drawn a distinction between the actual reasons why particular judges vote as they do in each case and the reasons they cite in their opinions. The latter, in this view, are more in the nature of post hoc rationalizations than causal explanations. If we want to know what really drove the Justices in some case, we would do better to study what happened behind the scenes.
However, experience with sunshine laws and public meetings laws is instructive. Often their effect is simply to drive the real action underground. Members of the relevant bodies hold closed-door "private" conversations or exploit loopholes allowing executive sessions, while the public meetings become a kind of theater. A regime in which the Justices' conferences were immediately public could well lead the Court to conduct its business much in the way that dissidents in the former Soviet bloc criticized the regime: in hushed outdoor conversations or indoors by hand signal with the radio turned up loud.
Accordingly, no one seriously argues that all of the Court's business should be conducted in public or, what amounts to the same thing, made immediately available to the public. Rather, the claim of Lepore and others is that after some reasonable but not too long time, some substantial portion of the record of the Court's internal decisionmaking processes should be made available to the public.
But why? Lepore repeatedly invokes "history" and its claims without ever saying what they are. Whatever one thinks of Santayana's warning about the need to remember the past with respect to other contexts, the stakes here are too small to make it relevant. Occasionally the papers of a Supreme Court Justice may contain documents that are relevant to some current controversy--as was arguably true in the case of Rehnquist's nomination--but only by accident. Moreover, that sort of relevance to current controversies generally fades over time. We don't need to know what Jackson said to Frankfurter or vice-versa to learn any useful lessons about the cases they decided or about interpersonal relations more broadly. Our interest (for those of us who have an interest in such matters) stems entirely from the fact that we find the matters inherently interesting.
Put differently, at least as applied to an institution like the Supreme Court, the claim of history is more in the nature of a claim of art than it is about making democracy function or anything so practical. The loss of the Frankfurter papers is a blow much in the same way (though not to the same degree) as it would have been a loss if Max Brod had honored the wishes of Franz Kafka and destroyed Kafka's works, rather than publishing them. We don't need to think that Kafka's works are essential reading for understanding the dangers of excess bureaucracy in order to appreciate those works as profound. They have inherent value.
Likewise with the papers of Supreme Court Justices. We can understand the broad picture of the work of the Supreme Court and its relation to other institutions without access to the Justices' papers. But for those who find history interesting, the minutiae of the decisionmaking process and even the behind-the-scenes gossip have inherent value. We can appreciate history in the way we appreciate art--for its own sake.