A book author’s claim that Justice Ruth Bader Ginsburg has imposed a 100-year restriction on access to her U.S. Supreme Court papers after she leaves the bench triggered a swirl of criticism and concern this week among historians, journalists and law professors.
But it turns out the 100-year restriction as stated in the new book, “Ruth Bader Ginsburg: A Life,” wasn’t accurate.
“The arrangements mentioned in the book are not true,” Kathy Arberg, head of public information at the Supreme Court, told The National Law Journal. “The justice has not announced her plans for her Supreme Court papers and would never impose such a restriction.”
The restrictions that justices put on their high court papers after they are no longer on the bench have generated considerable controversy over the years, particularly when access to the papers is barred until many years after every justice with whom the departed justice has served is no longer living.
The recent controversy followed a tweet posted by Lynda Dodd, a professor of legal studies and political science at the City University of New York. Dodd highlighted part of the bibliography of Jane Sherron De Hart’s new book about Ginsburg.
The bibliography excerpt said: “Papers from her tenure as associate justice of the Supreme Court (1993—) will not be available to researchers until a hundred years after the last justice with whom she has served is no longer alive.”
The 100-year restriction seemed out of character for a justice who has been one of the most transparent and accessible justices in modern times.
De Hart told The National Law Journal in an email: “My information is based on the guide to the RBG papers in the manuscripts division of the Library of Congress. It is not a matter that I have ever discussed with the justice.”
Janice Ruth, acting chief of the manuscript division of the Library of Congress, which houses Ginsburg’s pre-judicial and court of appeals files, said Ginsburg “has been very receptive to requests by researchers.”
The Library of Congress does not have any of Ginsburg’s Supreme Court papers, Ruth said. The draft guide to Ginsburg’s papers, Ruth said, does not contain a 100-year restriction. Files that include specific cases from Ginsburg’s years on the U.S. Court of Appeals for the D.C. Circuit are restricted so long as any judge who participated in that case is alive, Ruth said.
Unlike rules governing the preservation of presidential papers, no law controls the fate of justices’ papers, a fact that has resulted in a wide range of arrangements made by justices and their heirs. Justices typically do not disclose their preservation plans before their death, so the future homes of papers of current justices are unknown.
“Justices own their own papers, and unfortunately, they are under no legal obligation to preserve them,” said Kathryn Watts, a University of Washington School of Law professor who has written about justices’ papers.
Justice Hugo Black burned some of his papers. Justice David Souter, who retired in 2009, has specified that his papers, donated to the New Hampshire Historical Society, would not be made public until 50 years after his death.
At the other end of the spectrum, Justice Thurgood Marshall caused a posthumous controversy by deciding that his papers would be released as soon as he died. There was no way of predicting when that would happen, but he died in 1993, less than two years after he retired, so some of the files revealed very recent material to the public.
Chief Justice William Rehnquist angrily wrote to the Library of Congress, “I speak for a majority of the active Justices of the Court when I say that we are both surprised and disappointed by the library’s decision to give unrestricted public access to Justice Thurgood Marshall’s papers.”
The late justice Antonin Scalia’s family struck a middle approach with his papers, which will be housed at the Harvard Law School Library. Papers from his tenure as a judge on the U.S Court of Appeals for the D.C. Circuit from 1982 to 1986 and as a Supreme Court justice from 1986 to 2016 will begin to be released in 2020, or roughly four years after his death.
But files about specific cases “will not be opened during the lifetime of other justices or judges who participated in the case,” Harvard said.
Since some of his recent colleagues were relatively young, that means Scalia’s files on blockbuster cases such as same-sex marriage and the Affordable Care Act won’t likely be made public for decades.