Invisible Justices Part IV: The Justices' Papers

By Eric Segall

Shortly before the 1986-87 Supreme Court term began, Justice Byron White, who had been on the Supreme Court for twenty-five years, came to work on the weekend and, with the help of his law clerks, destroyed many of his official work files. According to White’s biographer, they bought a shredding machine for that specific purpose. Among the files lost forever were a few labeled “Miranda v. Arizona,” the landmark Supreme Court case where the Justices held that people accused of crimes have “the right to remain silent.” One of White’s law clerks at the time allegedly remarked “I couldn’t believe how much history was going down the chute.”

Supreme Court Justices are public employees who make public decisions and are paid out of public funds. Yet, there are no rules governing the maintenance, destruction, or disclosure of their official papers and records. Whereas the President’s and Vice-President’s files are subject to detailed recording and safekeeping requirements pursuant to the Presidential Records Act, the Justices each have their own idiosyncratic policies regarding their official documents. The result is that many important and official papers are often lost to history for extended and unnecessary periods of time and sometimes, as was the case with Justice White’s papers, forever. This is one more glaring example of how the Justices are less transparent than most other governmental officials.

There are of course official records kept for every Supreme Court case. The Court itself and other repositories keep the opinions, the transcripts, and the audio recordings of the oral arguments. But the Justices compile mountains of personal notes, draft opinions, memoranda, and other communications with the other Justices and their law clerks which are of vital historical significance. I am not arguing that all of these files must be disclosed without regard to privileges, personal information, and other materials that would be damaging if disclosed. But there should be comprehensive and uniform rules regarding these taxpayer-funded documents.

Because of the absence of these rules, many Justices keep their papers secret for decades while others have destroyed them altogether. According to an excellent paper written by Kathryn Watts, numerous twentieth Justices, including Owen Roberts, Benjamin Cardozo, Charles Whitaker, and Charles Evan Hughes, destroyed all or nearly all of their papers.

Justice William Brennan, who served on the Supreme Court for thirty-four years, gave one biographer virtually exclusive access to his papers for almost twenty years. Justice Souter’s papers are sealed for fifty years, while former Chief Justice Burger’s papers cannot be opened by anyone until 2026. Given the Chief’s administrative responsibilities, and in light of how diligently he exercised those duties, there may well be a treasure trove of interesting and enlightening information in those files that has little to do with the decisions in actual cases. What a shame that Court commentators, scholars, and reporters have been locked out of those papers for so long. (Chief Justice Burger retired before most of my students were born).

Of course the Justices are supposed to speak only through their written opinions, while other governmental officials (whose papers after retirement belong to the public) speak openly much of the time. This difference, however, does not lead to the conclusion that the Justices’ papers should belong to them rather than the public; at most it suggests that the law should treat the Justices’ papers differently. That the Justices hold their offices for life might suggest the need for greater, not lesser, scrutiny of their official records given that they do not need public approval to keep their jobs.

In any event, as with Presidential papers, the official records of the Justices are created, maintained, and used by governmental officials performing public tasks and therefore should belong to the public. As Judge Carl McGowan of the United States Court of Appeals for the District of Columbia Circuit once remarked as to his papers: “I can’t see any reason why . . . law clerks’ memoranda to me, my memoranda to them, my memoranda to other judges on the case, draft opinions, and notes . . . all that kind of thing …what’s in that file . . . are [not] the property of the United States.”

Justice Felix Frankfurter once observed that, to understand the United States Supreme Court, it is necessary to know the “private rehearsals . . . behind the impenetrable draperies of judicial secrecy.” One way historians, Court commentators, law professors and their students, as well as the public at large, can better understand the highest Court in the land is with reasonable access, after retirement, to the Justices’ records. If the Justices themselves do not promulgate such rules, Congress should do so, just as it did for the President and Vice-President of the United States.