The biggest heist in the history of the Library of Congress, Manuscript Division, was so sneaky that for a long time no one noticed that someone had smuggled out of the Reading Room more than a thousand pages from the papers of the U.S. Supreme Court Justice Felix Frankfurter, including Frankfurter’s correspondence with Lyndon B. Johnson, Charles Evans Hughes, McGeorge Bundy, and Hugo Black, and seven years’ worth of Frankfurter’s diaries. In November, 1972, after the theft was discovered, the Library of Congress called the F.B.I. The F.B.I. launched an investigation; it lasted more than a year. A grand jury was convened. Then, suddenly, the investigation was abandoned. The thief was never caught. The case is as cold as stone.
Felix Frankfurter is one of the most cantankerous and controversial figures in the history of American law. By some accounts, he broke the Court, and it has never been right since. The pilfering of his papers was a disaster, but it’s nothing compared with the loss to the historical record that happens every day, a block away, in the chambers of the U.S. Supreme Court. 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.
This fall, the Supreme Court issued a number of rulings that came as something of a surprise—refusing to hear a series of cases involving same-sex marriage, for instance—but there’s no reason to believe that historians will ever really know how the Court arrived at these decisions. Very few of the documents that could genuinely illuminate them will survive. The Federal Records Act, passed in 1950, specifically excludes the Supreme Court. In 1978, in the wake of Watergate, Congress passed the Presidential Records Act, which made the papers of American Presidents the property of the federal government; destroying them is a federal crime. There is no judicial equivalent. The Supreme Court’s official papers—formal filings, such as petitions, opinions, and briefs; and official records, such as audio recordings, transcripts, and governmental, case-related correspondence—end up at the National Archives. The papers of the Justices, if they save them, tend to go to the Library of Congress, to their alma maters, to their home towns, or to some other place they happen to like. They’re scattered across the country, and, by the time they arrive, they have, as a rule, been carefully culled.
The secrecy surrounding the U.S. Supreme Court derives from a policy set by the fourth* Chief Justice, John Marshall, who wanted the Court to issue single, unanimous decisions and to conceal all evidence of disagreement. His critics considered this policy to be incompatible with a government accountable to the people. “The very idea of cooking up opinions in conclave begets suspicions,” Thomas Jefferson complained. This criticism has never entirely quieted, but every time things get noisy the Court simply brazens it out. To historians and journalists who are keen to have the Court’s papers saved and unsealed, advocates of judicial secrecy insist that the ordinary claims of history and of public interest do not apply to the papers of U.S. Supreme Court Justices; the only claim on the Justices is justice itself.
Sitting Justices often view their colleagues’ decisions to make their papers public without delay as a betrayal of the living. Louis Brandeis began handing his papers over to the University of Louisville, in Kentucky, in 1936, three years before he stepped down from the Court. Frankfurter and Brandeis had been close correspondents. After Brandeis’s death, in 1941, Frankfurter went to Louisville, stormed into the library, asked for the file labelled “Frankfurter,” and took nearly everything out of it. “These are my papers, and I’m taking them back,” he told the librarian as he walked out the door, sheaf in hand...