Leaving to the whims of individual justices the fate of their papers is a recipe for inconsistency and obscurity for records with significant historical value.
The issue of how to treat a "justice's" papers (and the efforts of the Chief Justice to ferret out the source of the information about the draft Dobbs opinion) call to mind a legal doctrine ("legislative privilege") that was made unconstitutional by our Constitution. Legislatures previously invoked "legislative privilege" to justify prosecuting people (criminally) for disclosing information about legislative deliberations.
Now, we expect legislators to publish information about their deliberations as a matter of course. Even the executive branch must release information requested by the public, subject to very limited exceptions in the Freedom of Information Act. But for some bizarre reason, we presume or pretend that judges (especially SCOTUS justices) are not really full-fledged public servants and not fully subject to the First Amendment. The self-evident truth is that none of the papers at issue belong to any justice, personally. All such papers are the property of the People.
Once again, Citizens United v. FEC from 2010 can do considerable good regarding this issue. In Citizens United, SCOTUS reminded Americans that in our “republic” clearly “the people are sovereign,” and our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution.
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” or criticize ALL our public servants. “Discussion of public issues and debate on the qualifications of” ALL our current, past or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“Speech” also “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” That principle protects and governs current attorneys and retired judges as strongly as it protects all the rest of us. “Political speech” is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” about ANY of our public servants “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
It would be great for uniformity. But the first thing that came to my mind is if, as OLC recently concluded, the Presidential Records Act is an unconstitutional interpretation with separation of powers, Congress would likewise be limited to requiring actions on the papers of justices. I think the OLC opinion is legally incorrect and suspect courts will find it so eventually.
Trump (and the tyranny-loving SCOTUS justices in the majority) either lack the competence to comprehend or simply don't respect how the People divided powers among the three branches. The SCOTUS justices have no rational (or plausible) excuse for their misrepresentations and misconduct regarding the separation of powers (e.g., in Trump v. Slaughter).
This is not complicated. Many, if not most, adult citizens can comprehend that in Article I the People delegated to our directly-elected representatives in Congress the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" (regulating) not only all the enumerated "Powers" expressly vested in Congress, but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The People expressly vested in Congress the power to make laws that turn out to be necessary and proper to regulate absolutely "all [the] Powers" that were vested in the executive or judicial "Department" or "in any" executive or judicial "Officer thereof."
Justice Scalia got it. Regarding the rule of law and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788).
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
I am not sure I would describe Justice O'Connor as the "longest-lived justice with whom Burger served"—last-surviving, perhaps, but Stevens had a longer life.
I have to ask what principle is being served by keeping judicial deliberations confidential at all. I can see some possible reasons, but don't think we should take for granted that there is a sufficient interest in confidentiality to outweigh the public interest in having judicial deliberations available.
What do we gain by not having judicial records available to public records requests promptly like many other government documents?
I find it impossible to view all this secrecy as anything other than protecting what oughtn't to be tolerated in any free society. The former justices seem most concerned with protecting their colleagues, under some sort of euphemism about the Court's "dignity." I have not read any of these so-called personal papers, but the numerous recent decisions I have read put paid to any such "dignity" as the Court might have tried to assert.
Of course, the elephant in the room is electronic communication, no doubt already corrupted by AI, even at SCOTUS. What will anybody's "papers" look like by the time they are available for collection? (Snark: do Thomas and Alito use Signal?)
Don’t these people work for us? Don’t they, because we pay them a lifetime salary and retirement and heath insurance, work for us, We, the People? Doesn’t that reality leave them with SOME professional obligation — decided by their bosses, and not them, the employees — toward us? It’s sad that we can’t fire the ingrates.
The issue of how to treat a "justice's" papers (and the efforts of the Chief Justice to ferret out the source of the information about the draft Dobbs opinion) call to mind a legal doctrine ("legislative privilege") that was made unconstitutional by our Constitution. Legislatures previously invoked "legislative privilege" to justify prosecuting people (criminally) for disclosing information about legislative deliberations.
Now, we expect legislators to publish information about their deliberations as a matter of course. Even the executive branch must release information requested by the public, subject to very limited exceptions in the Freedom of Information Act. But for some bizarre reason, we presume or pretend that judges (especially SCOTUS justices) are not really full-fledged public servants and not fully subject to the First Amendment. The self-evident truth is that none of the papers at issue belong to any justice, personally. All such papers are the property of the People.
Once again, Citizens United v. FEC from 2010 can do considerable good regarding this issue. In Citizens United, SCOTUS reminded Americans that in our “republic” clearly “the people are sovereign,” and our powers as sovereigns necessarily include “the ability of the citizenry to make informed choices” about many public servants and public issues. That “ability” is “essential” to the operation of our Constitution.
“Political speech” is “indispensable to decisionmaking in a democracy” by citizens who are sovereign. “The Constitution” clearly “confers upon voters” (as sovereigns) the “power to choose” or criticize ALL our public servants. “Discussion of public issues and debate on the qualifications of” ALL our current, past or potential public servants “are integral to the operation of the system of government established by our Constitution.”
“Speech” also “is an essential mechanism of democracy” as a “means to hold officials accountable to the people.” “The right of citizens to inquire, to hear, to speak, and to use information” is essential “to enlightened self-government” (self-government implies sovereignty) and it is “a necessary means to protect it” (our self-government and our sovereignty). Thinking and speaking about government is the primary purpose and duty of government. It also is the primary power and duty of sovereignty.
“In the realm of protected speech,” government “is constitutionally disqualified from dictating the subjects about which persons may speak and the speakers who may address a public issue.” That principle protects and governs current attorneys and retired judges as strongly as it protects all the rest of us. “Political speech” is “indispensable to decisionmaking in a democracy, and this” is “true” regardless of whether “the speech comes from a corporation” or “an individual.”
“Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints.” “Prohibited, too, are restrictions distinguishing among different speakers, allowing speech by some but not others.” “As instruments to censor, these categories are interrelated: Speech restrictions based on the identity of the speaker are all too often simply a means to control content.” “The First Amendment protects speech and speaker, and the ideas that flow from each.” So “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”
“[T]he worth of speech” cannot “depend upon the identity of its source.” “Government cannot restrict political speech based on the speaker’s corporate identity” or individual identity. “[T]he First Amendment does not allow political speech restrictions based on a speaker’s corporate identity” or individual identity.
Our sovereignty means that “political speech” about ANY of our public servants “must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are ‘subject to strict scrutiny,’ which requires the Government to prove” two important points: first, that “the restriction” actually does support a legitimate “interest” that is “compelling,” and, second, that “the restriction” is “narrowly tailored to achieve that [compelling] interest.”
It would be great for uniformity. But the first thing that came to my mind is if, as OLC recently concluded, the Presidential Records Act is an unconstitutional interpretation with separation of powers, Congress would likewise be limited to requiring actions on the papers of justices. I think the OLC opinion is legally incorrect and suspect courts will find it so eventually.
Trump (and the tyranny-loving SCOTUS justices in the majority) either lack the competence to comprehend or simply don't respect how the People divided powers among the three branches. The SCOTUS justices have no rational (or plausible) excuse for their misrepresentations and misconduct regarding the separation of powers (e.g., in Trump v. Slaughter).
This is not complicated. Many, if not most, adult citizens can comprehend that in Article I the People delegated to our directly-elected representatives in Congress the power to "make all Laws" that turn out to "be necessary and proper for carrying into Execution" (regulating) not only all the enumerated "Powers" expressly vested in Congress, but also "all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The People expressly vested in Congress the power to make laws that turn out to be necessary and proper to regulate absolutely "all [the] Powers" that were vested in the executive or judicial "Department" or "in any" executive or judicial "Officer thereof."
Justice Scalia got it. Regarding the rule of law and separation of powers, Justice Scalia put it pretty well in 1988 in his (famous) dissenting opinion in Morrison v. Olson (echoing James Madison in 1788).
"That is what this suit is about. Power. The allocation of power [ ] in such fashion as to preserve the equilibrium [that the People by] the Constitution sought to establish—so that 'a gradual concentration of [ ] powers' [Federalist No. 51 (J. Madison)] can effectively be resisted."
"It is the proud boast of our democracy that we have 'a government of laws and not of men.' " That comes from the Massachusetts Constitution of 1780 regarding the separation of powers between legislative, executive and judicial departments. "The Framers of the Federal Constitution similarly viewed the principle of separation of powers as the absolutely central guarantee of a just Government. In No. 47 of The Federalist, Madison wrote that “[n]o political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty.” Justice Scalia emphasized, "Without a secure structure of separated powers, our Bill of Rights would be worthless."
Justice Scalia also highlighted that in Federalist No. 51 Madison emphasized the following crucial and dispositive truth about our Constitution and how the People chose to vest less power in the Executive and Judicial branches than in the Legislative branch: “it is not [even] possible to give to each department an equal power[. Moreover, i]n republican government, the legislative authority necessarily predominates.”
I am not sure I would describe Justice O'Connor as the "longest-lived justice with whom Burger served"—last-surviving, perhaps, but Stevens had a longer life.
I have to ask what principle is being served by keeping judicial deliberations confidential at all. I can see some possible reasons, but don't think we should take for granted that there is a sufficient interest in confidentiality to outweigh the public interest in having judicial deliberations available.
What do we gain by not having judicial records available to public records requests promptly like many other government documents?
I don’t think that Ava Singh graduated from Georgetown Law in 1927. But it would be cool if she had!
I find it impossible to view all this secrecy as anything other than protecting what oughtn't to be tolerated in any free society. The former justices seem most concerned with protecting their colleagues, under some sort of euphemism about the Court's "dignity." I have not read any of these so-called personal papers, but the numerous recent decisions I have read put paid to any such "dignity" as the Court might have tried to assert.
Of course, the elephant in the room is electronic communication, no doubt already corrupted by AI, even at SCOTUS. What will anybody's "papers" look like by the time they are available for collection? (Snark: do Thomas and Alito use Signal?)
Don’t these people work for us? Don’t they, because we pay them a lifetime salary and retirement and heath insurance, work for us, We, the People? Doesn’t that reality leave them with SOME professional obligation — decided by their bosses, and not them, the employees — toward us? It’s sad that we can’t fire the ingrates.