Should Supreme Court Justices Fear Access to Their Papers? An Empirical Study of the Use of Three Archival Collections

Abstract

US. Supreme Court justices typically donate their working papers to archives upon their retirement, often with lengthy embargoes. Researchers have debated whether the justices should be required to retain and disclose their papers as government records, but there has been little study of how the papers are used in scholarly and journalistic discussions of the Court. This empirical study examines how the papers of Justices William Brennan, Thurgood Marshall, and Harry Blackmun are used via citations in books and academic law journal articles. We find that most citations to the papers support discussions of the justices' views on the law along with deliberations and negotiations when deciding cases, precisely the kinds of uses that show the value of transparency. To address constitutional objections to mandated disclosures, we propose an incentive grant program that benefits the archives receiving justices' collections. This program would encourage justices to donate their papers with relatively short embargoes, ideally fifteen years after retirement from the Court.