How the Supreme Court locks away its own history

In early 2016, Justice Antonin Scalia died of a heart attack on a Texas ranch, sending his Supreme Court colleagues into a period of grief and uncertainty. Behind closed doors, they had to contend with another piece of unsettling news.

Scalia, the leading light of the conservative legal movement, had left no plans for his working papers, according to five people aware of the situation. For a Supreme Court justice, this was the equivalent of dying without a will. With no instructions for creating an archive or opening it to the public, the definitive inside account of his work — and the court’s — could be lost or emerge with uncomfortable speed.

So following his death, his colleagues entered into private negotiations to try to head off any such situation in the future.

In a series of memos and conference meetings, Chief Justice John Roberts led the surviving justices in discussions about imposing a more uniform seal for their own papers, according to several people with knowledge of the process.

The absence of instructions from Scalia and ensuing confidential conversations, which have not previously been reported, help explain why the nation’s highest court can be so difficult to understand. The ultimate record of the court’s work is considered the personal property of each justice, to dispose of or share as he or she chooses. And many of the justices have valued confidentiality over transparency and chosen to postpone scrutiny of their work for years to come.

In contrast with the executive branch, which is required to preserve and ultimately make public a record of its inner workings, there are no laws to determine what the justices save, shred, burn, or reveal, or when. The court does not share any information about policies or plans for records; a spokesperson for the court did not respond to written questions.

People familiar with the episode after Scalia’s death, who spoke to the New York Times on the condition of anonymity because of the court’s sensitivity over disclosure of internal workings, recalled that a consensus was reached but had differing memories of its terms and how solid or lasting it was.

Still, the death of Justice Ruth Bader Ginsburg, just a few years later, provides a clue: Her Supreme Court papers went, at her direction, to the Library of Congress on the condition that no case file would be opened until every justice involved in the matter had died, a restriction that could lock away many documents for decades.

Although some justices in previous eras arranged for their papers to be released not long after their own deaths, the trend on the Roberts court has been to impose much tighter restrictions, serving to further obscure a branch of government that has resisted calls for more transparency.

Each year, the justices carefully compose and edit about 60 opinions in argued cases to share with the world. The fuller, richer narratives of each case, showing the behind-the-scenes stories of how members of the court pressured, persuaded, and prevailed over one another to arrive at those opinions, are hidden away in the justices’ working papers — their confidential internal memos and opinion drafts.

The justices have said they want to keep those internal exchanges out of view, contending that secrecy protects the authority and finality of their decisions.

Because of the court’s lack of transparency, it is impossible to say what will become of the inner history of its current work — which scholars say is more crucial, and more endangered, than ever.

And people familiar with the court’s operations say they worry some of the most authoritative and revealing records are not being saved at all. That is because some work is now conducted digitally, via emails and texts. Those people, who spoke on the condition of anonymity to describe internal matters, said they were unaware of any consistent procedures for saving electronic records.

The revelations found in past justices’ working papers have been so potent, they have caused bruised feelings among the justices and blowups among government institutions.

And because no law governs the preservation of the justices’ work, each justice, assisted by staff, builds his or her own archival trove, deciding which memos, drafts, voting sheets, and meeting notes to preserve — or not.

One spring morning in 1993, the justices opened their morning copies of the Washington Post to find detailed accounts of their internal debates. Earlier that year, Justice Thurgood Marshall, the first Black member of the court, had died, and his papers had been donated to the Library of Congress. With no announcement, the library had opened his papers for public review, and Post reporters had been digging through the newly released archive.

The surprise release led to a brawl over how to interpret the justice’s written instructions. In a furious public letter, Chief Justice William Rehnquist took a swing at the Library of Congress, accusing it of “bad judgment” and of opening the records, some only two years old, prematurely. Marshall’s family sided with the chief justice, asking a senator to request that the papers be resealed. The library defended its reading of Marshall’s instructions. The papers stayed open.

In the wake of that controversy, the justices considered establishing common timelines for releasing their papers but could not come to a consensus, according to the papers of Justice Harry Blackmun, who chose to make his papers public five years after his death.

“‘This is the people’s court; it’s not our court,’” Harold Hongju Koh, a Yale University law professor and former Blackmun clerk, recalled his boss saying. “‘Who cares if we’re embarrassed. The main purpose here is to educate the public.’”

The 2004 release of Blackmun’s papers again caused shock at the court, because of the unvarnished portrait they revealed. His 24-year chronicle of his time on the court exposed tensions among the justices, his own heavy reliance on clerks, and a bombshell: In 1992, the court had come close to overturning Roe v. Wade, but a centrist coalition of justices had secretly worked together to save the federal right to abortion. The precedent had been far more vulnerable than outsiders realized.

A year after that release, Roberts joined the court as chief justice. The court’s new leader was reserved and disciplined. He rarely gave interviews or delivered speeches.

The fullest record of the Roberts court is hidden away in its basement.

In the bowels of the Supreme Court, below the red-velvet grandeur of the courtroom and the shuffle of tourists, the justices are assigned storage rooms in which they store case files, said people familiar with the court’s practices.

Access to the records in the basement is highly restricted. But every year, about three dozen new people are allowed to read some of them: the justices’ incoming law clerks, who arrive for yearlong apprenticeships.

Reading those files clears away the mystery that surrounds the court, say those who have seen them. Clerks often ask to read the insider accounts of the most game-changing decisions. But the deeper education is in learning about the dynamics among the justices.

In public remarks, the justices have argued that their judicial independence requires keeping these kinds of exchanges private so they can bat around ideas and change positions.

But some scholars question why papers should be sealed long after a justice has retired.

The Trump era has transformed and heightened the importance of the current justices’ working papers: They will one day provide the public’s first opportunity to understand why the court ruled as it did in some emergency matters.

“The more cases get decided without full opinions, the more important it is to get access to the papers,” Stuart Banner, a legal historian at UCLA, said in an interview.

But it is virtually impossible to estimate when — if ever — the public might see those records.

This article originally appeared in the New York Times.