Private SCOTUS files could reveal what happened in Bush v. Gore is still locked
The release of the one-time private files could help unravel one of the country’s most secretive agencies, even as open files often cause tension among sitting judges. The judges keep many of their proceedings secret, and all of their negotiations take place behind closed doors. Historians, law professors, and journalists dig into the papers to understand how these nine agencies work.
The files, which often include draft comments and memos written between judges, can shed light on each judge’s strategies and the nature of deliberations, and why some appeals are made, others are denied, and whether judges could have passed votes in the cases being heard. Such behind-the-scenes voting changes have made a difference in the abortion dispute as documents from other judges’ collections have revealed.
However, the archives add to the historical record in the past which has created internal conflicts.
Rehnquist tried unsuccessfully to get all eight associate justices to sign the letter, but ultimately has to say he wrote to “the majority of active judges.” Several judges who declined to participate said they believed Marshall wanted his papers released after his death.
Marshall actually set the terms for the release of documents relating to his tenure through 1991.
Rehnquist also tried unsuccessfully to persuade future colleagues to keep documents private for set periods of time, for example, as long as all the judges an individual served had retired. or die.
Justice Harry Blackmun’s files, later transferred with his archives to the Library of Congress, show that Justice Sandra Day O’Connor strongly agreed with Rehnquist in 1993 that judges should establish set deadlines for the issuance of papers. As Blackmun notes, the vote was 6-3 and Rehnquist did not want to impose any rules without consensus.
The three judges who voted against the proposed limits were Blackmun, Stevens and Justice Antonin Scalia, who passed away in 2016 and whose records are now stored at Harvard but are closed for the foreseeable future.
The Supreme Court’s public information office said Stevens’ papers were still being arranged for delivery and that the Covid-19 pandemic had slowed the effort. Library officials said they have no date on when the documents will be delivered. Once in hand, the library will categorize and catalog the materials for public access.
Stevens, who passed away in 2019, finalized a settlement for his papers with the Billington Librarian of Congress on January 3, 2005, Library officials told CNN. An additional agreement was signed on April 20, 2010, which is the day Stevens turned 90 and the year he retired. He is the third longest serving justice in court history. (Billington passed away in 2018)
The opening of the archives of judges stems from the special arrangement of individual judges with the Library of Congress and various universities.
The late Justice Blackmun arranged to open its files widely in 2004. That move further left the judges sidelined. Blackmun saved everything he ever wrote or received from a colleague.
According to court practice, a justice sends copies of the memos to an individual judiciary while negotiating the case for the group. Some judges clearly want more posterity control over the letters they write.
Breyer said the judges had an “informal understanding” that some documents, such as draft opinions and memorandums between judges, would be made public until after their deaths. Other judges have served on the case. Breyer acknowledges that such a treaty might conflict with individual justice’s wishes regarding their paperwork.
The court’s Office of Public Information did not respond to questions about whether there were any formal or informal arrangements for the disclosure of confidential files made under Chief Justice John Roberts. , which succeeded Rehnquist in 2005. PIO also declined to answer questions regarding any screening of the Stevens Files or possible removal of documents.
Susan Stevens Mullen, the daughter of the late justice, said she was not worried about any checks of his records. In an email exchange with CNN, she suggested that the delivery of her father’s documents “for COVID was delayed and the impact of the closures and working from home impacted the final review and organization.” organize articles.”
Stevens’ role in a historical era
Stevens, who was appointed in 1975 by Republican President Gerald Ford, was known for his independent approach and became the bench’s top liberal. The Chicago native whose work in Naval intelligence during World War II earned him the Bronze Star, whose only legal career began as a Supreme Court clerk in 1947- 48, then became an expert in antitrust law, before being appointed to the US appeals court seat. in 1970 and then the Supreme Court.
Stevens does not place any restrictions on its files for the Library of Congress other than separating them into two categories: documents created before October 1, 2005 and documents created on or after that date.
The first set will be made available “after the first Monday of October 2020,” which is October 6. (Researchers at the Library can view Stevens’ case files through 1984; these This file includes much of the background information in the files of other judges; documents of the late 1990s and early 2000s will likely be most valuable to researchers and the wider public. .)
The second batch after 2005, which coincides with Roberts becoming chief justice, will not be available under Stevens’ agreement until “the first Monday of October 2030.” (The judges begin their annual session on the first Monday in October.)
Stevens declined to conditionally release case files as to whether the judges involved in the cases were still alive, and the gift agreement made no exceptions or exclusions regarding donated material, the Library officials said.
That means his file will contain correspondence with sitting Judges Breyer and Clarence Thomas and with living retired Judges O’Connor, David Souter and Anthony Kennedy. The documents will also include the work of the relatively recently deceased judges Ginsburg (who served 1993-2020), Scalia (1986-2016) and Rehnquist (1972-2005).
Those eight judges and Stevens decided the 2000 Florida election dispute between then-Texas Governor George W. Bush and Vice President Al Gore. Their 5-4 decision, which ensured that Bush won the White House, weathered last year’s election as Donald Trump’s legal team tried to use some of its pretext to challenge electoral practices. state election and the final results showed that Joe Biden won the presidential election.
Stevens, the court’s senior libertarian at the time, disagreed in Bush v Gore along with other justices on the left. After September 11, 2001, the terrorist attacks, otherwise, Stevens was able to get a majority for decisions that limited President Bush’s assertion of executive branch power and ensured some protection for the rights of detainees.
Another important case that Stevens shepherded during this era was Clinton v Jones, in which the court unanimously ruled that then-President Bill Clinton could not claim presidential immunity to avoid a lawsuit. civil action for alleged sexual misconduct.
The approach that Stevens negotiated to award his archives to the Library of Congress was largely followed by Marshall (1967-1991) and Blackmun (1970-1994) at the Library of Congress and Justice Lewis Powell (1972) -1987), whose documents are located at the Washington and Lee School of Law.
Once those files were opened, researchers could easily find documents related to the sitting judges.
Library of Congress spokesman Brett Zongker said the Library has contacted the Supreme Court about when to turn over Stevens’ documents, but no date has yet been given.
Processing and cataloging the files will take place at the Library, and Zongker said it is difficult to estimate how long it will take. He said the first nine years of Stevens’ files, up to 1984, were received more than a decade ago and took less than four months to process.
However, Zongker wrote, “The Library anticipates that the rest of the collection will include a wider variety of papers … relating to his entire life as well as Court case files. Supreme Court, brackets and other material on “Stevens” followed decades of on the bench.