Papers of the Justices

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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10 Responses

  1. Orin Kerr says:

    Interesting article, thanks for linking to it.

    Just based on a quick read, I’m not sure it fully addresses the objection that judges will be discouraged from putting things down in writing if they know their records will be public eventually. Watts responds that this concern will be addressed by imposing wise periods of delay before the disclosure occurs. Perhaps, but judges are usually interested in their reputations over the long haul in addition to the shorter one. Further, the 25 year-old law clerks who are conversing with their bosses may also have a long time horizon in mind. My vague sense is that folks in the White House already do a lot of sensitive business orally to avoid the Presidential Records Act; if that’s right, then adding the same rule for every federal judge and the judge’s staff could have some pretty significant effects. Or at least that’s a significant concern, I think.

    P.S. One question I had that may be obvious to everyone else is which records would count as being covered by such a law. For example, would the entirety of the judge’s and the law clerks’ government e-mail accounts become public? Are all memos included? Informal notes? Each draft opinion? Are some communications excluded?

  2. mls says:

    I suspect one would get farther with Congress by treating judges’ papers in an analogous fashion to congressional papers. The records of a Members congressional office are treated as private property, but the records of congressional committees and other institutional offices are treated as public property (although confidential records do not become public until a considerable period has elapsed- 30 to 50 years in the House). One might argue that “collective” judicial papers (communications between judges, draft opinions that are shared, etc) should be treated as pubic property, while the individual judges personal notes, internal communications with clerks would remain private property.

  3. Shag from Brookline says:

    Practitioners of “law office history” would salivate over the availability of such papers.

  4. Gerard Magliocca says:

    Orin,

    How about just establishing a requirement that the papers cannot be destroyed?

  5. Orin Kerr says:

    Gerard,

    What counts as “the papers”? And what is the purpose or effect of a preservation rule without a subsequent disclosure rule?

  6. Thanks for pointing out my article. I agree with Orin that one major counterargument (and probably the most serious counterargument) to my proposal relates to the potential “chilling effect” on judges’ interactions. I address this concern in my current draft on SSRN and address the concern to an even greater degree in a subsequent draft of the article that is not yet up on SSRN but will be soon. Unlike Orin, I do believe that a time restriction would go a long way to helping deal with chilling concerns. Indeed, with respect to inter-judge communications, a new regime—which puts judges on notice that inter-judge communications will remain closed for a specified period of time before being disclosed—may actually raise *less* of a chilling effect than the current system of private ownership. This is because our current system of private ownership allows individual judges to release such inter-judge communications whenever they want even if that is immediately upon or soon after their retirement. That is precisely what happened, for example, when Justice Thurgood Marshall left the bench, and his papers, including many inter-justice communications, were released just two years after he retired much to the dismay of Chief Justice Rehnquist and other members of the Court.

    As to the point raised by mls above about Congressional papers, mls is right that currently the records of individual members of Congress are treated as private property. Although my paper does not directly address the question of how congressional papers should be handled and treated, it does flag the fact that if Congress were to tackle the question of judicial papers, it also likely would have to take a look at how it is treating its own members’ papers. Otherwise Congress would look pretty self-serving. I tend to think that it would make little sense to treat collective judicial papers as public but individual judicial papers as private given that both are created by government officials on government time and using government resources. Both seem to me like quintessentially public property in their nature.

  7. Gerard Magliocca says:

    Orin,

    I don’t see why the definitional question is especially difficult. As for disclosure, I think reasonable people could have many opinions on the timing–I don’t have a strong view on that. But I do think that there should be preservation plus a uniform rule.

  8. Orin Kerr says:

    Kathryn, thanks for the response. It seems to me that chilling effects would work quite differently at the Supreme Court level than at the lower court level. You’re right that Supreme Court Justices know that written communications among the Justices will become public eventually. So the rule you suggest might have a narrow effect at the Supreme Court level. On the other hand, my understanding is that your rule is not just about the Supreme Court: If I’m not mistaken, it would apply at all levels of the federal judiciary. And I think it would have a quite different impact in the lower courts. For example, district judges presently don’t share communications with anyone at all, and circuit court judges can be pretty sure that their communications will remain confidential. Given that, I suspect a rule of public access to judicial records would have a profound effect at the lower court level. At the lower court level, the folks who would want access to records likely would not be scholars, but rather disgruntled litigant such as pro se prisoners. So I suspect that the major impact of the rule would be to give losing litigants access to the judges’ records on the cases that they decided, and I suspect that would have a significant deterrent ex ante impact discouraging the creation of written records. Or at least that’s the concern I would have.

  9. Lurker says:

    There is an alternative: archiving without any subsequent release. In Finland, the internal working papers of the higher courts have been painstakingly archived for centuries, but only the judges and justices of those courts have the access to those papers. The judicial oath in Finland requires the judge never to release information on the internal discussions of the court.

    Even the few research papers written on these papers have been published by the judges themselves, without revealing the contents of the papers, which the judges have sworn not to disclose.

    This way, the important historical documents are preserved for the posterity (at least the future serving judges) but the internal workings of the court remain sacrosanct.

  10. Shag from Brookline says:

    Since the author had clerked for a Supreme Court Justice, I was surprised that the paper did not include any reference of then Clerk Wm. Rehnquist’s infamous memo supporting Plessy v. Ferguson in consideration of Brown v. Bd. of Education that was disclosed and thus required addressing by Rehnquist on his appointment to the Court. So much more is involved than the serving Justices.

    Also not addressed are the tax consequences of Justices’ papers being considered their personal property, with gift, estate and income tax implications, including how to value such papers for such purposes.

    Also, perhaps the situation of the Justices should have been compared with employees, including executives and directors, with regard to “personal” ownership of papers developed in the course of their duties under master/servant and employer/employee laws. Such an analysis may have focused on the government, as employer, owning such papers. (Query: Can a corporate executive maintain “personal” copies of documents resulting from the performance of his/her duties to the employer?) If the government were, by such analysis, determined to be the owner of the Justices’ papers, the next question would be whether the public should ever have access to them. That remains a most serious question, as pointed out in this article.

    While making such papers available to the public at some point may please historians and constitutional scholars, there would be concern with cherry-picking and “law office history” as exists today in efforts at determining original public meaning of the Constitution as amended. And the use of private institutions for storage, access, etc, of such papers could suffer from political leanings, e.g., the Hoover Institute.