WaPo Editorial: Why the records of Supreme Court justices should be governed by rules -- not individuals

Roundup: Talking About History

THE CASE of former Supreme Court justice David H. Souter shows why the country needs a sensible and formal policy on how justices preserve and disseminate material they produce while performing their public duties.

Justice Souter agreed last month to donate his personal and professional papers to the New Hampshire Historical Society in his home state. But he ordered that they be off-limits to the public, including academic researchers, historians and journalists, for 50 years from the date of his retirement -- or until 2059. This restriction is excessive and puts Justice Souter's records out of reach for two generations, making it that much harder to fully and accurately assess his work and impact on the court.

Yet it could have been worse. Only documents that are part of an official case record -- such as briefs, final opinions and orders -- must be preserved for at least some time. No such strictures exist for a justice's work product, which could include notes from private conferences, drafts of opinions or correspondence with colleagues or clerks about cases. Justice Souter could just as easily have ordered these documents burned, shredded or otherwise destroyed in full, as Justice Charles Evans Whittaker did after stepping down from the court in 1962...

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