Some Rehnquist Papers Will Be Made Public Soon

The family of the late Chief Justice William Rehnquist has decided to donate his extensive papers from 33 years on the Supreme Court and before to the Hoover Institution Archives at Stanford University, Rehnquist's alma mater. Hoover is expected to announce the acquisition later today, Legal Times has learned, and will make some of the documents available within weeks.

One consequence of the arrangement reached between the family and Hoover this summer is that Rehnquist's files on Roe v. Wade, the 1973 case declaring a right to abortion, will be made public very soon. That's because all of the justices who were on the Court then are deceased. Richard Sousa, director of the archives, said the restriction placed on Rehnquist's case files was that none could be released while any justice on the Court at the time the case was considered is alive. Rehnquist was sworn in as associate justice in January 1972, and John Paul Stevens, who is still on the Court, became a justice in December, 1975. As a result, only the case files between those dates can be released now. The next "tranche" of files between 1975 and 1981, when Sandra Day O'Connor joined the Court, will be made public only after Stevens dies, Sousa said.

Sousa said the relationship between Rehnquist and Hoover dates back to before Rehnquist became a justice, when  Rehnquist served on the institution's board of overseers. Once Rehnquist joined the Court, Hoover officials would periodically express their interest in receiving his papers when the time came, but Sousa says nothing was agreed on before Rehnquist died in September 2005. The Rehnquist family issued this statement: "We are pleased to donate our father's papers to Stanford University's Hoover Institution. Stanford is where our parents met as college students, and, though they spent their last decades in Washington, their hearts were always in the West."

Many justices deposit their papers with the Library of Congress, and Daun Van Ee of the library's manuscript division said Tuesday that Rehnquist's papers would have been welcomed. "We were interested. Any Supreme Court justice's papers would be a coup." But it is no surprise that the family bypassed the Library of Congress in favor of Hoover. Rehnquist was furious at the Library of Congress for its handling of Justice Thurgood Marshall's papers, which were released immediately upon his death in January 1993. Coming so soon after his retirement from the Court in October 1991, the release exposed to the public the files of very recent cases, to the consternation of many justices. "We are both surprised and disappointed" at the unrestricted release, Rehnquist wrote in a letter to the library, decrying the library's "bad judgment." Library officials said they were following Marshall's express instructions. The furor may have resulted in part from the unpredictable fact that Marshall died sooner than he expected.

Sousa said the Rehnquist collection comprises 600 linear feet of documents from his Court years and earlier. Files and documents other than case files will be released to the public as soon as archivists can process them, Sousa said, noting that the material only arrived at the institution in the last few weeks. Sousa indicated he was not sure how comprehensive the Rehnquist files are. "We know what we got; we don't know what we didn't get." Sousa said no electronic data such as stored email messages are part of the collection, though he added it is possible that printouts of some emails have been kept. Some artifacts and memorabilia are also being donated to the Rehnquist Center on the Constitutional Strucures of Goverment at the University of Arizona.

Scholars and former Rehnquist law clerks say his files are likely to be less comprehensive than those of the last justice whose papers were released, Harry Blackmun. Blackmun was a packrat who took extensive notes at the Court's private conferences about the justices' views of pending cases.

Rehnquist was less meticulous, and one of his clerks said this week it is possible that some of the case memoranda drafted by his law clerks were not kept. During his own confirmation hearings, Rehnquist was grilled by the Senate about a memo he had written as a clerk to Justice Robert Jackson concerning Brown v. Board of Education. As a result of that experience, Rehnquist may have decided to spare his clerks some grief by discarding their memos to him.

"Nothing, of course, will probably ever match the Blackmun papers for inclusiveness and revelation," said University of Chicago law professor Dennis Hutchinson, who makes frequent use of justices' papers for his research. "I would expect the Rehnquist papers to be at the opposite extreme, depending on how much sorting he did along the way," Unlike presidential papers, the papers of justices are not governed by any law requiring that they be preserved or made public.

University of Cambridge professor David Garrow, who has mined justices' papers extensively and authored the definitive book on Roe v. Wade, doubts Rehnquist's file on the case will reveal "much if anything" that has not been gleaned from other justices' files, except perhaps a draft of Rehnquist's dissent. But Garrow said Rehnquist's non-case files "may be where the action is," revealing new details about Rehnquist's pre-Court days and his lengthy tenure on the Court, including his role presiding over the impeachment trial of President Bill Clinton in 1999.

Comments

[d]

It is a bit callous & presumptuous to assume that one living Justice will die before another.

[Simon]

Re "Scholars and former Rehnquist law clerks say his files are likely to be less comprehensive than those of ... Blackmun," Rehnquist said as much himself in an interview with Charlie Rose the year before he died.

[JT]

It would be fascinating to see how a long time Supreme Corut Justice went about making decisions and what his philosophy was. However, it may also uncover some possible information that could cloud decisions.