This article is part of TPM Cafe, TPM’s home for opinion and news analysis. It was originally published at Balls and Strikes.
Death tends to make people realize things. Unexpected departures from this earthly plane, in particular, can prompt the living to reflect on how to better use the time they have left. Chief Justice John Roberts, who has led the Supreme Court since 2005, received such a prompt in February 2016, when Justice Antonin Scalia died in his guestroom at a luxury ranch resort in Texas.
According to The New York Times, Scalia died without having told anyone what to do with his papers—drafts of opinions, copies of memoranda exchanged between the justices, notes on the Court’s internal meetings, and so on. If those documents were to become public, they could shed light on the Court’s deliberative processes, revealing, for instance, when and why justices changed their minds, or in which cases their minds were already made up.
Scalia’s family donated his papers to the Harvard Law School Library, on the condition that files related to specific cases would remain sealed until every other justice who participated in the case had died, too. But his death made Roberts realize that he needed to do a better job of ensuring that the Court’s secrets remain secret. On Tuesday, the Times reported that in the wake of Scalia’s death, Roberts pushed the living justices to impose a “more uniform seal for their own papers.” The Times also says that eventually “a consensus was reached,” but that sources had “differing memories of its terms and how solid or lasting it was.”
The new reporting is the latest illustration of the Court’s fear of public scrutiny. Access to the justices’ papers would help the public understand what the Court is doing and how the Court really works. That knowledge is a prerequisite for holding the Court accountable. Roberts wants the justices to take that knowledge to their graves so that he can bury the prospect of accountability along with them.
The work product of many public servants is public property. Laws like the Presidential Records Act, Federal Records Act, and Freedom of Information Act govern the preservation and publication of executive branch papers. Federal law also requires the routine publication of the text of bills and resolutions introduced by Congress, transcripts of floor debates, most committee reports, and other official congressional papers.
The judicial branch, however, is not subject to the same kind of regulations. Currently, Supreme Court justices have sole discretion over whether and when their documents are retained or released. When Justice Thurgood Marshall retired in 1991, for example, he gave his papers to the Library of Congress; when he died two years later, the Library granted the public unrestricted access. Justice Ruth Bader Ginsburg also had her papers sent to the Library of Congress upon her death in 2020, but subject to the same condition that Scalia’s family imposed: that no case files be opened during the lifetime of another justice involved in the case.
In contrast, in 1986, Justice Byron White bought a shredder and enlisted his clerks to help him “clean up the place” by destroying case files. Shortly before his death in 1971, Justice Hugo Black directed his son to set his papers on fire so that their contents couldn’t harm the Court or his colleagues—a Viking funeral that Black’s wife referred to as “Operation Frustrate-the-Historians.”
The justices have long contended that the integrity of their work depends on some amount of secrecy. If deliberations were not confidential, they claim, they would not be able to consider cases thoroughly and with candor, and their ability to exercise independent judgment could be compromised. Recently, during a rare appearance on Capitol Hill, Justice Elena Kagan told lawmakers that the justices can’t be “fully open” with their colleagues about their views if they have to worry that “those views are going to appear on the front page of the newspaper.”
The justices have also suggested that the authority of their decisions could be undermined if people knew how the judicial sausage was made. During the December 2021 oral argument in Dobbs v. Jackson Women’s Health Organization, the case that would rescind the constitutional right to abortion, Roberts posed a question based on the papers of Justice Harry Blackmun, who directed the Library of Congress to make his papers public five years after his death. Roberts described Blackmun’s papers as an “unfortunate source,” and said that his ability to ask a question based on them was “a good reason not to have papers out that early.”
Roberts’s old boss, Chief Justice William Rehnquist, also sharply criticized the Library of Congress in 1993 for exercising “bad judgment” by making Marshall’s papers public only two years after his death—and without consulting the Court or Marshall’s family—in light of “the court’s long tradition of confidentiality in its deliberations.”
Harboring concerns about confidentiality may seem reasonable in the abstract. It becomes much less reasonable, however, when considered alongside the Court’s aggressive use of the shadow docket to implement right-wing policies without explanation, and its pressuring of Court employees to sign a nondisclosure agreement about the Court’s inner workings. It becomes even less reasonable when one considers the justices’ frequent refusal to testify before Congress, their spurning of calls for a binding ethics code, and their unconcealed loathing of critical news coverage.
This is a Court that is wholly opposed to any form of transparency and considers itself above reproach. The justices’ concealment of their papers for generations suggests that this belief persists even after death.