Safeguarding History

Sunday, September 6, 2009

THE CASE of former Supreme Court justice David H. Souter shows why the country needs a sensible and formal policy on how justices preserve and disseminate material they produce while performing their public duties.

Justice Souter agreed last month to donate his personal and professional papers to the New Hampshire Historical Society in his home state. But he ordered that they be off-limits to the public, including academic researchers, historians and journalists, for 50 years from the date of his retirement -- or until 2059. This restriction is excessive and puts Justice Souter's records out of reach for two generations, making it that much harder to fully and accurately assess his work and impact on the court.

Yet it could have been worse. Only documents that are part of an official case record -- such as briefs, final opinions and orders -- must be preserved for at least some time. No such strictures exist for a justice's work product, which could include notes from private conferences, drafts of opinions or correspondence with colleagues or clerks about cases. Justice Souter could just as easily have ordered these documents burned, shredded or otherwise destroyed in full, as Justice Charles Evans Whittaker did after stepping down from the court in 1962.

Most justices would probably never consider such drastic and historically devastating actions. But the absence of guidelines leaves individual justices with far too much power to determine the fate of records that the public rightly has a claim to. After all, justices are public servants and are paid with public dollars.

It's reasonable to allow a grace period between a justice's retirement and the public release of papers. Such a lag should help ensure against disclosures about pending matters and lawyers' use of very recent information that could tip them off to the thinking of justices still on the court. The Brownell Commission, which studied the issue in the 1970s, recommended that justices' working papers be deemed public property and made available to the public 15 years after a justice's retirement. Congress took up the matter in 1993, after the controversial release of the papers of the late Justice Thurgood Marshall. Then-Chief Justice William H. Rehnquist, in response to an invitation to address lawmakers, wrote that legislation was "not necessary and that it could raise difficult concerns respecting the appropriate separation that must be maintained between the legislative branch and this Court." Nothing ever came out of the hearings.

The best way to avoid concerns is for the Judicial Conference of the United States, the policymaking body for the federal judiciary chaired by Chief Justice John G. Roberts Jr., to take the lead in establishing guidelines for justices and all federal judges. But if the judiciary cannot or will not act, Congress should.

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