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."
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.
This is fascinating. What do the judges fear if their private papers are revealed? One of the readers suggested they fear hurting another judge whom they don’t agree with…? I think it’s unlikely the motive is that altruistic. Are they afraid of themselves being criticized?
I myself wonder if their concern is for being seen as horse-trading legal mediocrities. But it could be just the reflexive secrecy of bureaucracies in general, who are obsessed with image and control. The reasoning and notes of the justices regarding rulings certainly constitute vital public information.
Federal judges (including justices) should be held to standards analogous to the standards to which they hold us.
The primary reason is the one SCOTUS, itself, addressed in Citizens United v. FEC (which I addressed in my original comment). The entire Constitution (not merely the First Amendment) is “Premised on mistrust of governmental power," so in our “republic” our Constitution established that “the people are sovereign.”
In New York Times Co. v. Sullivan, SCOTUS in 1964 unanimously emphasized the principles that James Madison had emphasized about the sovereignty of the people and their view of the power of our public servants: " 'The people, not the government, possess the absolute sovereignty.’ The [People by the] structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." So SCOTUS unanimously emphasized that "a judge," just like "other public servants," is governed by the First Amendment, and judges have no power to "give [any] public servants [(including judges) any] unjustified preference over the public they serve." So consider how the People established their own privileges over their own papers and what judges have said about such privileges.
The Fourth Amendment expressly secures "[t]he right of the people to be secure" in our "papers [ ] against unreasonable searches and seizures" by our public servants. The Fifth Amendment expressly secures the privilege of every person "in any criminal case" to not be "compelled" to "be a witness against himself." But in essentially every case, courts routinely compel people to produce papers. Even in civil cases, litigants are compelled to produce papers in "discovery."
Regarding the privacy of personal papers, a well-established and well-developed body of judicial judgments addresses when we can keep our papers private based on various privileges. The two most familiar privileges are the Fifth Amendment privilege against self-incrimination and the attorney-client privilege. Many SCOTUS opinions emphasize that either such privilege can be waived by any person who has made public disclosures regarding the substance of such papers. Those same standards and principles are applied against executive branch employees under the Freedom of Information Act (FOIA). Those same standards and principles should be applied to judges trying to conceal "their" papers. Quite often, judges already have publicly disclosed (or publicly represented) in a published (or so-called "unpublished") opinion their thinking about their judgments or rulings in a particular case.
The foregoing is even more clearly compelled by the fact that the papers at issue simply are not actually the property of any federal judge. The papers are the property of the People. Back in 1803 Chief Justice Marshall writing for SCOTUS in Marbury v. Madison particularly emphatically emphasized two principles relevant here. "The government of the United States has been emphatically termed" (by the People by our Constitution) "a government of laws, and not of men." The People established by our Constitution that "[i]t is emphatically" the "duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." All federal judges "must of necessity expound and interpret" each "rule" they purport to construe, interpret or apply. In Article III, the People established the constitutional duty of all federal judges to explain how the facts of "all Cases, in Law and Equity" and all "Controversies to which the United States shall be a Party," for example, are governed by our "Constitution, the Laws of the United States," or "Treaties."
Apparently, SCOTUS justices need to be reminded that all federal judges are public servants. As the People emphasized in Article VI, the only legitimate function of every federal employee is "to support [our] Constitution."
Apparently, SCOTUS justices need to be reminded of the truth about how federal so-called "sovereignty" fits into the Constitution created by the People for the People. The entire Constitution was designed to split the atom of sovereignty into three (not two). The concept of "federalism" (dividing powers (and purportedly sovereignty) between federal and state governments) doesn't even begin to tell an accurate, much less the whole, story of how our Constitution treats power and sovereignty. Our Constitution divided sovereignty into three levels, not two.
Apparently, SCOTUS justices need to be reminded that the People (who wrote and ratified our Constitution to establish the paramount part of "the supreme Law of the Land" (Article VI) possess the first and highest level of sovereignty. As the first words of our Constitution emphasized, "We the People of the United States" by ourselves and for ourselves did "ordain and establish this Constitution for the United States of America" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity."
The last words of the original Constitution (in Article VII) established who constituted "the People" and how and when they established their sovereignty. "[T]he Establishment of this Constitution" was accomplished in June 1788 by "[t]he Ratification of the Conventions of nine States." Each convention in each state was chosen (the delegates were elected) directly by the people of such state specifically for the particular purpose of deciding whether to ratify our Constitution. The people of the first nine states to ratify immediately became "the People of the United States" (Preamble) on June 21, 1788. The people of Virginia and New York promptly joined them in July 1788. The people of North Carolina joined them in November 1789, and the people of Rhode Island joined them in May 1790.
Article VI established exactly what the People accomplished when they "ordain[ed] and establish[ed our] Constitution for the United States of America" (Preamble) as it existed on June 21, 1788, as well as in July 1788, November 1789 and May 1790 (when four more states joined the Union). Our Constitution immediately became "the supreme Law of the Land" (i.e., the land comprising every ratifying state) and all "the Judges in every State" immediately became "bound thereby," and all "Members of the several State Legislatures, and all executive and judicial Officers" of "the several States" immediately became "bound" to "support this Constitution."
The People in Article VI also established that every state that would be admitted to the Union after June 21, 1788, and every federal employee thereafter (none existed until early 1789) would be governed by the same text and principles. SCOTUS justices need to stop pretending that they don't understand or they aren't governed by the foregoing principles and aspects of our Constitution.
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.
If the justices were less secretive about their deliberations, would there be fewer leaks and less speculation?
A theoretical question, perhaps...but a desire for secrecy and an almost godlike sense of self-importance do seem to be throughlines that help explain much of their public behavior.
Agree. However, I'd like all of the papers (digitalized version and-non digitalized) to be under 1 roof. Library of Congress, the Smithsonian, etc. Oh. Wait. I want less kkkoruption too.
The federal judiciary is the closest thing we have in the U.S. to a national-level establishment of religion. SCOTUS justices with their often unjustified (and sometimes unjustifiable) decisions help prove this point clearly and convincingly. Judges often sit in temple-like buildings, and they act like clerics purporting to speak for some unseen god. Looking and acting very much like high priests, they parade into a courtroom--and SCOTUS justice even parade into the Capitol for the State of the Union Address--dressed in black robes. Judges even have the temerity to have another court employee order us to stand for judges as they enter and exit courtrooms. The way that judges insist that we treat them is surreal. It would be laughable if judges weren't so spiteful and so determined to smite those who don't give them the respect they insist or imply that they are "due."
The presumptions and pretenses of judges remind me of something Thomas Jefferson said about the Declaration of Independence's second sentence. Just before he died (on Independence Day, July 4, 1826 on the Declaration's 50th anniversary) Jefferson said what the Declaration's second sentence meant and was meant to accomplish. The declaration that "all men are created equal" was meant to be "the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings & security of self-government." The independence and equality of all "restores the free right to the unbounded exercise of reason and freedom of opinion." As a result "all eyes are opened, or opening, to the rights of man. the general spread of the light of science has already laid open to every view. the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god."
The timing of Steve’s article is as usual elegant. Yesterday as a direct consequence of the lies broadcast on Fox that resulted in in the $745 Million defamation settlement one of the stars of the Fox network was fired. The First Amendment as as applied in Times v. Sullivan is alive and well. Justice Thomas has repeatedly called for an examination of the Sullivan decision However he has never spelled out out how he would reexamine —-overturn?—Sullivan. It is a safe bet that we will never know the extent of the damage Thomas wants to do to First Anendment rights unless reasonable and uniform standards are adopted. While Roberts has made the Dobbs issue public there are other seminal decisions that equally require full disclosure and Sullivan certainly is one
Justice Thomas is ignoring obvious but inconvenient truths that the unanimous court highlighted in New York Times Co. v. Sullivan. The standard stated in Sullivan (those advocating repression of expression must prove that criticism was false and that such "falsehood" was stated "with actual malice") echoed the Sedition Act of 1798 (those advocating repression of expression must prove that criticism was "false" and also that it was both "scandalous and malicious") and that "the great controversy over" this new law "first crystallized a national awareness of the central meaning of the First Amendment."
As SCOTUS emphasized in Sullivan, "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize" the propriety of "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" (first and foremost) a "falsehood" and then proves that it also was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
SCOTUS in Sullivan emphasized that "the great controversy over the Sedition Act of 1798 [ ] first crystallized a national awareness of the central meaning of the First Amendment." It also helped crystalize the one of the most important principles underlying our entire Constitution (the sovereignty of the People over all our public servants).
The People by "the Constitution created a form of government under which ‘The people, not the government, possess the absolute [actual] sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." Emphatically, "the nature of [our] Republican Government" means and requires "that the censorial power [generally] is in the people over the Government, and not in the Government over the people." So our "freedom in canvassing the merits and measures of public men, of every description" was not and cannot be "confined to the strict limits of the common law" governing expression and communication (e.g., of seditious libel), which necessarily died when our Constitution sprang to life.
"The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government." That view even was confirmed by John Adams and Congress with their enactment of "the Sedition Act of 1798" which expressly permitted (and protected) criticism that would bring any national government official "into contempt or disrepute; or to excite against them" even "the hatred of the good people of the United States" unless and until the government proved (beyond a reasonable doubt), first, how such speech was "false" and then also proved how it was both "scandalous and malicious."
Isn't this a bit of an overstatement by the Times? -
"[The Blackmun papers revealed] 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."
Wasn't this already widely suspected/leaked, even if the papers were needed to fully confirm it?
You're right that this is a problem that isn't unique to SCOTUS. Professor Vladeck is right that this problem should be addressed by Congress in a uniform manner. Such legislation is necessary and proper, in part, because judges are inclined to presume or pretend that their work product are "their" papers and judges are inclined to presume or pretend that they somehow have some special privilege to conceal "their" papers from us.
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."
Having worked with classified information for years, information is kept secret often for decades because its release could harm our nation’s security. Somehow I don’t see the same issue here, but more fear of embarrassment (which, by the way, is specifically prohibited as a sole rationale to classify something).
Congress needs to do something here. These justices work for us. I was a federal employee (Executive Branch) for almost 40 years, and it was drummed into our heads that we worked for the people of this country, and that nothing we produced belonged to us -- it's the people's. I was in the Intelligence Community, so there were STANDARDIZED rules about when info could become public. They made sense and they were followed. There's no reason whatsoever not to address this same issue with the courts. None!
I am very thankful that the Obama's, Biden's and VP Harris understood what you said. I wish others would too. I'm not saying they were perfect people. But compared to orange? Yea. They set the standard pretty high for what 1 WANTS to see and how to treat people.
This paragraph from Kantor’s NYT article was interesting: “The court’s liberals have criticized its opacity, and its newest member, Justice Ketanji Brown Jackson, has shown a willingness to buck her colleagues. She or another justice could unilaterally decide to reveal the court’s secrets at any time.”
I doubt she’d release anything while still on the bench, but it proves your point even further — the lack of any formal process for releasing them can swing both ways, and it’d cover everyone’s bases if there was a standard process put in place.
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.”
As usual, I find that your comments are best printed out, and kept in a notebook for further study!
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."
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 think she’s still a student (of Prof. Vladek) who helped with the research for this article, and will graduate in 2027.
Oh my. My only defense is that I had not had any coffee yet. And my son is also in her class! Lesson learned.
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.
This is fascinating. What do the judges fear if their private papers are revealed? One of the readers suggested they fear hurting another judge whom they don’t agree with…? I think it’s unlikely the motive is that altruistic. Are they afraid of themselves being criticized?
I myself wonder if their concern is for being seen as horse-trading legal mediocrities. But it could be just the reflexive secrecy of bureaucracies in general, who are obsessed with image and control. The reasoning and notes of the justices regarding rulings certainly constitute vital public information.
Federal judges (including justices) should be held to standards analogous to the standards to which they hold us.
The primary reason is the one SCOTUS, itself, addressed in Citizens United v. FEC (which I addressed in my original comment). The entire Constitution (not merely the First Amendment) is “Premised on mistrust of governmental power," so in our “republic” our Constitution established that “the people are sovereign.”
In New York Times Co. v. Sullivan, SCOTUS in 1964 unanimously emphasized the principles that James Madison had emphasized about the sovereignty of the people and their view of the power of our public servants: " 'The people, not the government, possess the absolute sovereignty.’ The [People by the] structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." So SCOTUS unanimously emphasized that "a judge," just like "other public servants," is governed by the First Amendment, and judges have no power to "give [any] public servants [(including judges) any] unjustified preference over the public they serve." So consider how the People established their own privileges over their own papers and what judges have said about such privileges.
The Fourth Amendment expressly secures "[t]he right of the people to be secure" in our "papers [ ] against unreasonable searches and seizures" by our public servants. The Fifth Amendment expressly secures the privilege of every person "in any criminal case" to not be "compelled" to "be a witness against himself." But in essentially every case, courts routinely compel people to produce papers. Even in civil cases, litigants are compelled to produce papers in "discovery."
Regarding the privacy of personal papers, a well-established and well-developed body of judicial judgments addresses when we can keep our papers private based on various privileges. The two most familiar privileges are the Fifth Amendment privilege against self-incrimination and the attorney-client privilege. Many SCOTUS opinions emphasize that either such privilege can be waived by any person who has made public disclosures regarding the substance of such papers. Those same standards and principles are applied against executive branch employees under the Freedom of Information Act (FOIA). Those same standards and principles should be applied to judges trying to conceal "their" papers. Quite often, judges already have publicly disclosed (or publicly represented) in a published (or so-called "unpublished") opinion their thinking about their judgments or rulings in a particular case.
The foregoing is even more clearly compelled by the fact that the papers at issue simply are not actually the property of any federal judge. The papers are the property of the People. Back in 1803 Chief Justice Marshall writing for SCOTUS in Marbury v. Madison particularly emphatically emphasized two principles relevant here. "The government of the United States has been emphatically termed" (by the People by our Constitution) "a government of laws, and not of men." The People established by our Constitution that "[i]t is emphatically" the "duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." All federal judges "must of necessity expound and interpret" each "rule" they purport to construe, interpret or apply. In Article III, the People established the constitutional duty of all federal judges to explain how the facts of "all Cases, in Law and Equity" and all "Controversies to which the United States shall be a Party," for example, are governed by our "Constitution, the Laws of the United States," or "Treaties."
Apparently, SCOTUS justices need to be reminded that all federal judges are public servants. As the People emphasized in Article VI, the only legitimate function of every federal employee is "to support [our] Constitution."
Apparently, SCOTUS justices need to be reminded of the truth about how federal so-called "sovereignty" fits into the Constitution created by the People for the People. The entire Constitution was designed to split the atom of sovereignty into three (not two). The concept of "federalism" (dividing powers (and purportedly sovereignty) between federal and state governments) doesn't even begin to tell an accurate, much less the whole, story of how our Constitution treats power and sovereignty. Our Constitution divided sovereignty into three levels, not two.
Apparently, SCOTUS justices need to be reminded that the People (who wrote and ratified our Constitution to establish the paramount part of "the supreme Law of the Land" (Article VI) possess the first and highest level of sovereignty. As the first words of our Constitution emphasized, "We the People of the United States" by ourselves and for ourselves did "ordain and establish this Constitution for the United States of America" to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity."
The last words of the original Constitution (in Article VII) established who constituted "the People" and how and when they established their sovereignty. "[T]he Establishment of this Constitution" was accomplished in June 1788 by "[t]he Ratification of the Conventions of nine States." Each convention in each state was chosen (the delegates were elected) directly by the people of such state specifically for the particular purpose of deciding whether to ratify our Constitution. The people of the first nine states to ratify immediately became "the People of the United States" (Preamble) on June 21, 1788. The people of Virginia and New York promptly joined them in July 1788. The people of North Carolina joined them in November 1789, and the people of Rhode Island joined them in May 1790.
Article VI established exactly what the People accomplished when they "ordain[ed] and establish[ed our] Constitution for the United States of America" (Preamble) as it existed on June 21, 1788, as well as in July 1788, November 1789 and May 1790 (when four more states joined the Union). Our Constitution immediately became "the supreme Law of the Land" (i.e., the land comprising every ratifying state) and all "the Judges in every State" immediately became "bound thereby," and all "Members of the several State Legislatures, and all executive and judicial Officers" of "the several States" immediately became "bound" to "support this Constitution."
The People in Article VI also established that every state that would be admitted to the Union after June 21, 1788, and every federal employee thereafter (none existed until early 1789) would be governed by the same text and principles. SCOTUS justices need to stop pretending that they don't understand or they aren't governed by the foregoing principles and aspects of our Constitution.
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.
If the justices were less secretive about their deliberations, would there be fewer leaks and less speculation?
A theoretical question, perhaps...but a desire for secrecy and an almost godlike sense of self-importance do seem to be throughlines that help explain much of their public behavior.
Agree. However, I'd like all of the papers (digitalized version and-non digitalized) to be under 1 roof. Library of Congress, the Smithsonian, etc. Oh. Wait. I want less kkkoruption too.
The federal judiciary is the closest thing we have in the U.S. to a national-level establishment of religion. SCOTUS justices with their often unjustified (and sometimes unjustifiable) decisions help prove this point clearly and convincingly. Judges often sit in temple-like buildings, and they act like clerics purporting to speak for some unseen god. Looking and acting very much like high priests, they parade into a courtroom--and SCOTUS justice even parade into the Capitol for the State of the Union Address--dressed in black robes. Judges even have the temerity to have another court employee order us to stand for judges as they enter and exit courtrooms. The way that judges insist that we treat them is surreal. It would be laughable if judges weren't so spiteful and so determined to smite those who don't give them the respect they insist or imply that they are "due."
The presumptions and pretenses of judges remind me of something Thomas Jefferson said about the Declaration of Independence's second sentence. Just before he died (on Independence Day, July 4, 1826 on the Declaration's 50th anniversary) Jefferson said what the Declaration's second sentence meant and was meant to accomplish. The declaration that "all men are created equal" was meant to be "the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings & security of self-government." The independence and equality of all "restores the free right to the unbounded exercise of reason and freedom of opinion." As a result "all eyes are opened, or opening, to the rights of man. the general spread of the light of science has already laid open to every view. the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god."
Thurgood Marshall retired in 1991. As I recall, his papers from 1949 to 1991 were fully available at the LOC in 1992.
The timing of Steve’s article is as usual elegant. Yesterday as a direct consequence of the lies broadcast on Fox that resulted in in the $745 Million defamation settlement one of the stars of the Fox network was fired. The First Amendment as as applied in Times v. Sullivan is alive and well. Justice Thomas has repeatedly called for an examination of the Sullivan decision However he has never spelled out out how he would reexamine —-overturn?—Sullivan. It is a safe bet that we will never know the extent of the damage Thomas wants to do to First Anendment rights unless reasonable and uniform standards are adopted. While Roberts has made the Dobbs issue public there are other seminal decisions that equally require full disclosure and Sullivan certainly is one
Justice Thomas is ignoring obvious but inconvenient truths that the unanimous court highlighted in New York Times Co. v. Sullivan. The standard stated in Sullivan (those advocating repression of expression must prove that criticism was false and that such "falsehood" was stated "with actual malice") echoed the Sedition Act of 1798 (those advocating repression of expression must prove that criticism was "false" and also that it was both "scandalous and malicious") and that "the great controversy over" this new law "first crystallized a national awareness of the central meaning of the First Amendment."
As SCOTUS emphasized in Sullivan, "Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize" the propriety of "any test of truth" that "puts the burden of proving truth on the speaker." "The constitutional guarantees require" a "federal rule that prohibits a public official from" penalizing or punishing criticism "relating to [any] official conduct" for its content until someone "proves that the statement was" (first and foremost) a "falsehood" and then proves that it also was "made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not."
SCOTUS in Sullivan emphasized that "the great controversy over the Sedition Act of 1798 [ ] first crystallized a national awareness of the central meaning of the First Amendment." It also helped crystalize the one of the most important principles underlying our entire Constitution (the sovereignty of the People over all our public servants).
The People by "the Constitution created a form of government under which ‘The people, not the government, possess the absolute [actual] sovereignty.’ The structure of the government dispersed power in reflection of the people’s distrust of concentrated power, and of power itself at all levels." Emphatically, "the nature of [our] Republican Government" means and requires "that the censorial power [generally] is in the people over the Government, and not in the Government over the people." So our "freedom in canvassing the merits and measures of public men, of every description" was not and cannot be "confined to the strict limits of the common law" governing expression and communication (e.g., of seditious libel), which necessarily died when our Constitution sprang to life.
"The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of government." That view even was confirmed by John Adams and Congress with their enactment of "the Sedition Act of 1798" which expressly permitted (and protected) criticism that would bring any national government official "into contempt or disrepute; or to excite against them" even "the hatred of the good people of the United States" unless and until the government proved (beyond a reasonable doubt), first, how such speech was "false" and then also proved how it was both "scandalous and malicious."
Isn't this a bit of an overstatement by the Times? -
"[The Blackmun papers revealed] 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."
Wasn't this already widely suspected/leaked, even if the papers were needed to fully confirm it?
Don't court of appeals judges (and for all I know district court judges) control the disposition of their papers as well?
You're right that this is a problem that isn't unique to SCOTUS. Professor Vladeck is right that this problem should be addressed by Congress in a uniform manner. Such legislation is necessary and proper, in part, because judges are inclined to presume or pretend that their work product are "their" papers and judges are inclined to presume or pretend that they somehow have some special privilege to conceal "their" papers from us.
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."
Having worked with classified information for years, information is kept secret often for decades because its release could harm our nation’s security. Somehow I don’t see the same issue here, but more fear of embarrassment (which, by the way, is specifically prohibited as a sole rationale to classify something).
Congress needs to do something here. These justices work for us. I was a federal employee (Executive Branch) for almost 40 years, and it was drummed into our heads that we worked for the people of this country, and that nothing we produced belonged to us -- it's the people's. I was in the Intelligence Community, so there were STANDARDIZED rules about when info could become public. They made sense and they were followed. There's no reason whatsoever not to address this same issue with the courts. None!
I am very thankful that the Obama's, Biden's and VP Harris understood what you said. I wish others would too. I'm not saying they were perfect people. But compared to orange? Yea. They set the standard pretty high for what 1 WANTS to see and how to treat people.
This paragraph from Kantor’s NYT article was interesting: “The court’s liberals have criticized its opacity, and its newest member, Justice Ketanji Brown Jackson, has shown a willingness to buck her colleagues. She or another justice could unilaterally decide to reveal the court’s secrets at any time.”
I doubt she’d release anything while still on the bench, but it proves your point even further — the lack of any formal process for releasing them can swing both ways, and it’d cover everyone’s bases if there was a standard process put in place.