Scalia left no arrangements for his working papers.
A stray remark in my earlier post about a possible Jodi Kantor disclosure from the recent term has stuck with me for some time. Where are the leaks, I wondered, and here we are already in September.
Meanwhile, a few hours later Kantor published her exposé, yet it largely doesn’t bring anything new to light. In essence, it revisits long-known material.
It appears that after Justice Scalia’s death, the remaining Justices agreed to restrict the publication of their papers until each involved member in a given case is deceased. The more striking revelation is that Scalia had made no provisions for his own papers:
In early 2016, Justice Antonin Scalia died suddenly of a heart attack on a Texas ranch, sending his Supreme Court colleagues into a period of grief and uncertainty. Behind closed doors, they had to contend with another piece of unsettling news.
Justice Scalia, the leading light of the conservative legal movement, had left no plans for his working papers, according to five people aware of the situation. For a Supreme Court justice, this was the equivalent of dying without a will. With no instructions for creating an archive or opening it to the public, the definitive inside account of his work — and the court’s — could be lost or emerge with uncomfortable speed.
So following his death, his colleagues entered into private negotiations to try to head off any such situation in the future.
In a series of memos and conference meetings, Chief Justice John G. Roberts Jr. led the surviving justices in discussions about imposing a more uniform seal for their own papers, according to several people with knowledge of the process.
The absence of instructions from Justice Scalia and ensuing confidential conversations, which have not previously been reported, help explain why the nation’s highest court can be so difficult to understand. The ultimate record of the court’s work is considered the personal property of each justice, to dispose of or share as he or she chooses. And many of the justices have valued confidentiality over transparency and chosen to postpone scrutiny of their work for years to come.
I think this tells us that Justice Scalia did not think he was anywhere close to death. Certainly Scalia wouldn’t leave something like this to chance.
It is also relevant that Kantor continues to mine the October 2015 Term. Her previous piece on the shadow papers came from the same term. What else does her source(s) from that term have?
