Recently, when Justice John Paul Stevens gave a talk at the law school where I teach, he was asked why these certiorari votes are not public. He paused and then said that, in his 35 years on the court, the issue of publicly disclosing such votes had "never come up, so he had never thought about the question.
His response says a lot about how the justices take for granted their secrets and the court's lack of transparency.
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Partly because of the court's many secret practices, justices' personal records and papers are of vital historical significance. Although there is an important federal law governing what happens to a president's official records and papers after he leaves office, there is no similar statute or even official policy for Supreme Court justices. At present, they may keep, dispose or place conditions on their papers as they see fit.
Former Chief Justice Warren E. Burger's records, many of which are presumably administrative, will not be available to the public until 2026, even though he retired in 1986. Justice Byron R. White destroyed many of his files, including those relating to the landmark Miranda case, which dealt with police interrogations, and Justice William J. Brennan Jr. allowed one law professor exclusive access to his records for almost 20 years, much to the consternation of journalists and historians. Justice David H. Souter has embargoed his papers for 50 years.
I am not suggesting that the public should have immediate access upon retirement to all of a justice's official records, and the case can be made that certain pre-decisional documents should never be made public. But Supreme Court justices are government officials whose salaries are paid by the taxpayers, and their records, like those of the president, should be deemed public property and available for review after taking into account reasonable privacy concerns.
