The U.S. Supreme Court has been criticized for failing to heed the wake-up call of 9/11 and not making contingency plans for the continuity of the institution if disaster strikes.

New historical research suggests that indifference goes back decades into Cold War days, when the court first embraced, then dropped, plans to relocate to the Grove Park Inn in Asheville, N.C., in the face of a nuclear threat.

"It fits, I am afraid, a pattern of institutional and leadership inertia or willful head-in-the-sand behavior across all three branches, although Congress…did, of course, respond to the Cold War by creating the secret bunker at the Greenbrier," said American Enterprise Institute resident scholar Norm Ornstein, who was an adviser to a joint post-September 11 AEI-Brookings Institution commission on the continuity of government. He referred to a different resort in West Virginia.

After the commission issued a report in 2011 urging measures that would help the Supreme Court reconstitute itself after an attack, Ornstein criticized the justices for not showing interest in the matter.

Late last month, Cold War historian Bill Geerhart posted online numerous documents that fill in the history of the court’s consideration of emergency measures much earlier, during the Cold War.

Included was a formal agreement from 1956 stating that the court could take over the bucolic resort in Asheville for its own use in the event of "an enemy attack or the imminence thereof." The agreement covered six floors, 141 rooms, several cottages and a 40-room dormitory — with access also to a golf course and a soon-to-be-built swimming pool.

Chief Justice Earl Warren endorsed the agreement, which resulted from an earlier scouting trip by the court’s clerk at the time, Harold Willey. In a 1955 report to Warren, Willey said the Grove Park Inn had been suggested to the court by the Office of Defense Mobilization. Around the same time, Congress was considering relocating to the Greenbrier resort in case of emergency.

Willey reported to Warren that federal court facilities in Asheville, used by the U.S. District Court for the Western District of North Carolina as well as the U.S. Court of Appeals for the Fourth Circuit, were not "sufficiently commodious" for Supreme Court use. But the Grove Park Inn would be adequate for the Supreme Court’s emergency needs, Willey said. He recommended the rural location because of the likelihood that large cities would be targeted first in an enemy attack. "A hotel in a secluded small city, wherein approximately one-hundred people could both live and work, with spaces available for a courtroom and clerical offices, seems a most appropriate facility for the court," Willey wrote.

In a 1956 letter to Willey, Warren said he was "pleased to know that you have completed arrangements" for the emergency relocation, adding that the next clerk of the court should make further planning "one of his first projects." For a period after that, documents show that court employee payroll records were regularly shipped to the Grove Park Inn, apparently to facilitate paying employee salaries during the relocation.

Other than that, Geerhart found little evidence that court officials did anything to advance the relocation plans. In 1966, owners of the Grove Park Inn asked the court whether it still wanted to continue the arrangement. Then-clerk John Davis asked Warren what he wanted to do, and Warren’s reply suggested that he was washing his hands of the matter: "I have no knowledge of this situation even to the extent of knowing whether the government wants the arrangement continued." He urged the clerk to forward the hotel’s letter to unnamed civil defense officials.

Geerhart said Warren’s change of tone was striking. "He was pretty happy [about the plan] in 1955, but 11 years later he was not as enthused." But that change also coincided with the general change in attitude about civil defense, he said. By then, the Mount Weather relocation site in Virginia had been developed, and there was some provision made for the Supreme Court to join other branches at that facility. Geerhart reports that Assistant Attorney General Ramsey Clark, the son of Justice Tom Clark, was dispatched to Mount Weather during the Cuban missile crisis in 1962 to see if it was adequate for the court. But interest faded after that as well.

David Krugler, another Cold War historian who first mentioned the court’s Asheville relocation plans in a 2006 book, said the court’s indifference was typical. "The irony is that interest in emergency preparations is at its highest immediately after an emergency," said Krugler, a history professor at the University of Wisconsin – Platteville. "But when things are peaceful, that’s the time to plan."

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