The Supreme Court: Secrecy and Extrajudicial Activities

December 15, 2014

Two weeks ago I read The Great Paper Caper, written for The New Yorker by Jill Lepore. Professor Lepore teaches history at Harvard, and is also a staff writer for the magazine.

The piece tells a great story about missing papers from the files of Justice Felix Frankfurter. Seemingly, through poor record-keeping and controls, someone walked the papers out the doors of the Library of Congress. (The article includes a “who’s who” of prominent men from the 1930s through the 1970s, and the story proves yet again that clerking at the U.S. Supreme Court advances careers.)

An over-arching theme of the story relates to document secrecy. The Presidential Papers Act of 1978 and the Federal Records Act of 1950 both reach government files, but neither includes judicial papers. (The 1978 Act came about in part because of President Nixon’s attempt to get a charitable deduction on his federal income tax returns for leaving his pre-presidential papers to the National Archives. There was backdating involved and an underling did time.)

About the secrecy, Professor Lepore observes:

The papers of Supreme Court Justices are not public records; they’re private property. The decision whether to make these documents available is entirely at the discretion of the Justices and their heirs and executors. They can shred them; they can burn them; they can use them as placemats. Texts vanish; e-mails are deleted. The Court has no policies or guidelines for secretaries and clerks about what to keep and what to throw away. Some Justices have destroyed virtually their entire documentary trail; others have made a point of tossing their conference notes. “Operation Frustrate the Historians,” Hugo Black’s children called it, as the sky filled with ashes the day they made their bonfire.

Justices make the case for the special nature of their work, including the unfettered exchange of ideas, often in writing, about issues and cases. Historians—and others, including the late great President Thomas Jefferson, who was never a fan of unelected judges—disagree. Alas, as Professor Lepore states:

Fair-minded arguments can be made on both sides. But, so far, the question hasn’t been debated; it’s been tabled.

Fair enough that we should have this debate, and I’m not at all certain where I come down. (I get both sides of the argument.) That said, if the justices want to have special treatment for their papers, not talking about anything and everything in public might make their argument more persuasive.

Exemplar No. 1 involves Justice Antonin Scalia’s recent remarks about torture, reported in Antonin Scalia’s Case for Torture by Matt Ford for The Atlantic. Look, I disagree with Justice Scalia’s point of view, and the Constitution does mention treaties (and the United States is a party to the Geneva Conventions), but that’s not the issue. Canon 3 of the Code of Judicial Conduct directs judges to conduct their “personal and extrajudicial activities to minimize the risk of conflict with the obligations of judicial office.” Torture as an issue might come before the Court; thus, we should not benefit from or be burdened by the extrajudicial comments of justices.

Exemplar No. 2 comes from Justice Ruth Bader Ginsburg. She was interviewed by Jeffrey Rosen for The New Republic—soon before Mr. Rosen and almost everyone else walked out—and made some very direct comments about abortion. They’re reported by Irin Carmon for MSNBC on October 1 in Conservatives condemn Ruth Bader Ginsburg’s abortion comments.

Here, I am simpatico with Justice Ginsburg’s views. Still, I think abortion should be an “off limits” topic for sitting justices.

Judges are vested with much power and very little oversight. That goes “double-down” for Supreme Court justices, for there is no judicial conduct body—other than Congress, using its impeachment powers—to regulate their activities. And if justices want the secrecy they think they need to fulfill their duties, we deserve for them to be on the job 24/7 when it comes to judicial demeanor.

P.S. If you read the article, please feel free to share any possible, unmentioned suspects who come to mind. I have a theory, and while it may be off the wall, it may be shared by others.

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