Monday, June 6, 2016

Judges' Working Papers: Research Behind the Closed Door

In this guest post, Reference Librarian and Senior Lecturing Fellow Marguerite Most explores a new option for researching judges' working papers, and discusses the legal issues surrounding personal archives.

Judicial working papers are materials written as a case is decided and may include internal draft memos, conference notes and correspondence, and vote sheets. The official record in a case could include briefs, motions, transcripts of hearings, and the final opinion in a case. The Presidential Records Act of 1978 shifted presidential records from private to public ownership. However, chamber papers and other records of federal judges are considered the personal property of the judge who created them, and have never been subject to a defined policy of collection and preservation, unlike official court records.

In 1964, U.S. Supreme Court Justice Felix Frankfurter announced his intent to law professor Alexander M. Bickel that "all my private papers pertaining to my work as an Associate Justice are eventually to go into your keeping for ultimate permanent deposit in the Harvard Law School." Frankfurter's papers became the nucleus of the Harvard Law School Library's Modern Manuscripts Collection and more recently, the nucleus of ProQuest's "Law and Society since the Civil War: American Legal Manuscripts from the Harvard Law School Library" module in the ProQuest History Vault database. Goodson Law Library recently added the "Law and Society" module to the campus-wide History Vault database, which is available to the Duke University community with a NetID and password. The collection includes working papers and other primary materials of three U.S. Supreme Court justices: Felix Frankfurter, Louis Brandeis, and Oliver Wendell Holmes, Jr., as well as selected papers of other federal judges and law professors associated with Harvard Law School.

The Frankfurter collection covers the Court's terms from 1938 through 1961; the Brandeis collection includes papers from 1916 until his retirement in 1939; and the Holmes collection, which dates from 1861-1935, includes a few court papers and many more personal papers: letters and diaries Holmes wrote during the Civil War, his friendships, and his intellectual life. Other collections in the "Law and Society" module include papers of William Henry Hastie, Jr., the first African-American to serve as Governor of the United States Virgin Island and a federal appellate judge on the Third Circuit, as well as a collection of his papers concerned with civil rights, racial discrimination and segregation; and papers of Albert Levitt, a long-time law professor at Washington and Lee and a US District Court judge

The History Vault database allows searching across modules for multiple perspectives on a subject. For example, a researcher can search the papers of Judge Hastie in the "Law and Society" module for his correspondence on civil rights and school integration, and simultaneously search the "Federal Government: Records of the Department of Justice's Civil Rights Division" module for the files of assistant attorney general W. Wilson White for his reports on desegregation.

"The Great Paper Caper," a 2014 article in The New Yorker, recalls the discovery in 1972 of the theft of working papers of Supreme Court Justice Frankfurter from the Library of Congress Manuscript Division, "including Frankfurter's correspondence with Lyndon B. Johnson, Charles Evans Hughes, McGeorge Bundy, and Hugo Black, and seven years' worth of Frankfurter's diaries." The case was never solved. The article addresses why working papers are still considered proprietary and some of the in-court squabbles by some past and present members to keep them that way.

Because judicial ownership of working papers is private, judges decide what happens to their papers: What is available? When it is available? Available to whom? The answers vary considerably and have resulted in tremendous inconsistency. Some justices have donated their papers to several entities. Although some of Justice Brandeis' papers at Harvard are included in the "Law and Society" module, Brandeis also donated papers to Brandeis University in Waltham, Massachusetts, the Louis D. Brandeis School of Law in Louisville, Kentucky, and several other repositories.

Donors can and do restrict access for specified lengths of time. The papers of Justice Warren Burger at the College of William & Mary are closed to researchers until 2026. The papers of Justice David H. Souter, which he donated to the New Hampshire Historical Society, are closed for 50 years. Justice Sandra Day O'Connor's papers at the Library of Congress are to open upon her death, but individual case files will remain closed "during the service of any justice who participated in the case." Justice Thurgood Marshall provided for public access two years after he donated his collection to the Library of Congress.

The papers of many Supreme Court justices and some federal judges at the appellate and district court levels can be found in repositories including the Library of Congress, academic libraries and historical associations nationwide. (For example, the Goodson Law Library collection includes a multi-volume print set The Papers of John Marshall, which collects his correspondence, papers and legal documents. An author search for a judge's name will identify other paper sets in our collection.) Some papers have disappeared over the years, some have been deliberately destroyed, and some may be stored in a relative's attic and yet to be discovered. Not many have been digitized. Examining judicial working papers can mean a visit to the holding archive or library and a search through file boxes, sometimes with the help of a finding aid, other times slowly one piece at a time.

Researchers interested in studying a judge's working papers often must begin by identify holding archives and libraries. The Federal Judicial Center Directory of Manuscript Collections Related to Federal Judges, 1789-1997 lists archival materials in court historical societies and repositories, as well as the National Archives and Records Administration, and the Manuscript Division of Library of Congress. Repositories singled out as holding extensive collections include Harvard Law School, the University of Virginia School of Law and Tarlton Law Library at the University of Texas. The Center's Biographical Directory of Federal Judges updates the earlier directory as well as providing brief biographical information about sitting, retired and deceased federal judges. For example, a search of the Judicial Center's directory identifies Harvard Law Library as the major repository for the papers of Henry Jacob Friendly, Second Circuit Court of Appeals Judge from 1959 – 1986. The current directory also links to collections researchers might otherwise fail to consider. For example, Samuel J. Ervin, III was a North Carolina senator known for his role as chair of the Select Committee on Presidential Campaign Activities in the Watergate scandal. Ervin was later appointed to the Fourth Circuit. A 1993 "Interview with Sam J. Ervin III" is available in the Southern Oral History Program at the University of North Carolina.

Presidential Libraries can be another source of materials related to judges appointed by the President. Some collections can be identified by searching records in other divisions of the government – records of the Department of State contain materials related to the appointment and service of judges from 1789-1888; records of the Department of Justice include materials related to judicial appointments. Accessing the Papers of Supreme Court Justices: Online & Other Resources, SCOTUSblog (Aug. 22, 2013) is a post by Ronald Collins in which he identified online papers of these Supreme Court Justices: Harry Blackmun, Warren Burger, Tom Clark, John Jay, Lewis Powell, Joseph Story and Earl Warren; online finding aids to printed materials in many other collections; and some collections with no online access. Collins also cited several articles and books in which the work of the Court is discussed, including The Supreme Court in Conference (1940-1985): The Private Discussions Behind Nearly 300 Supreme Court Decisions. Del Dickson, the editor of The Supreme Court in Conference, combed through handwritten conference notes from working papers of eight justices and in some instances referred to multiple sources for the cases in his book. Dickson aimed not only to explore inside the Court, but also to combine what he found in these justices' notes with the historical setting in which the cases were decided.

For anyone not sure what to do about the boxes of Great-Aunt Mildred's judicial working papers stored in the attic, the Federal Judicial Center provides a "Guide to Preservation of Judges' Papers." If you are interested in how conservators care for their collections, a recent post on the Law Library of Congress blog In Custodia Legis includes photographs of the repair of a manuscript of handwritten notes by signer of the Declaration of Independence and Associate Supreme Court Justice Samuel Chase.
For Further Reading
--Marguerite Most, Reference Librarian and Senior Lecturing Fellow