Justices need to show public their papers
When presidents leave office, their official papers don’t go with them. A federal law requires that, with certain exceptions, these valuable historical documents be made public over time. But when Supreme Court justices leave office, whether through retirement or death, no law governs how their papers should be handled. The papers are regarded as the property of the justices, even though they shed light on decisions that have had momentous impact on the public. And the Freedom of Information Act does not apply to the federal judiciary.
When Justice Antonin Scalia died suddenly Feb. 13, three decades of Supreme Court history might have gone with him. Scalia was the longest-serving member on the current court, ruling on hot-button issues from gay rights to the Affordable Care Act. And wouldn’t you like to know more about what went on behind the scenes regarding Bush v. Gore?
When President Obama nominated federal appeals Judge Merrick Garland to replace Scalia, justices’ papers again became an issue. Nearly 40 years ago, Garland worked as a law clerk for Justice William Brennan. Brennan’s papers, available at the Library of Congress, have provided a rich resource for historians. But before he died, Brennan specified that some of his papers, including his law clerk files, would not be made public until 2017, 20 years after his death.
Those familiar with Brennan’s papers say the folder might not reveal much about Garland. Even so, Garland is under consideration for a seat on the highest court, so it is hard to understand why this file should be secret.
Brennan’s proviso is far from the most outlandish restriction justices have placed on their papers. Justice David Souter, who retired in 2009, stipulated that no one could see his papers until 50 years after his death. When he lodged his papers with the New Hampshire Historical Society he told the director, “I’ve got an incinerator outside my house.’’
That was not an empty threat. Justices have burned or shredded their papers to prevent circulation, according to University of Washington court scholar Kathryn Watts. On the other end of the spectrum, Justice Thurgood Marshall’s papers became public immediately upon his death in 1993, two years after he retired. The release revealed details about very recent cases.
The ensuing controversy led to a Senate hearing on whether a consistent rule for justices’ papers should be enacted into law. Skittish about ruffling judicial feathers, Congress soon dropped the idea of legislation. But Congress was not reluctant to act when, in the wake of the Watergate scandal, it enacted the Presidential Records Act that established rules for access to presidential papers.
In an era when the public demands maximum transparency and accountability, the time has arrived for Congress to keep justices from shielding – or torching – documents the public deserves to see.
Tony Mauro, a member of USA TODAY’s Board of Contributors, is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief.