The Supreme Court of the United States maintains a highly restricted approach to managing its working papers and internal records, a practice that continues to limit transparency into the court’s decision-making processes. Unlike executive branch agencies, which are generally subject to regulations governing document preservation and public disclosure, no statute mandates how justices handle their papers, nor requires these materials to be archived or eventually released.
This opacity was highlighted following the sudden death of Justice Antonin Scalia in early 2016. Scalia, a prominent conservative figure on the court, left no explicit instructions for preserving or sharing his working papers. His unexpected passing prompted private discussions among the justices, led by Chief Justice John G. Roberts Jr., aimed at establishing more standardized protocols for managing such documents. However, specifics of these agreements remain confidential, and observers note there is no certainty about the longevity or effectiveness of any consensus reached.
The personal nature of the justices’ records means the materials—draft opinions, internal memos, and other documents revealing behind-the-scenes deliberations—are considered private property. Each justice decides whether, when, and how to dispose of or share their papers. This approach has resulted in a patchwork of restrictions: For example, the late Justice Ruth Bader Ginsburg directed that her papers be transferred to the Library of Congress but stipulated that no case files should be opened until all justices involved in a case have passed away, potentially locking away some records for decades.
Previous generations of justices displayed varied attitudes toward transparency. Justice Harry A. Blackmun opted to make his papers public five years after his death, producing a detailed and candid chronicle of court affairs, including revelations about the fragility of Roe v. Wade during the early 1990s. Contrastingly, Justice Byron R. White famously ordered the destruction of his files upon retirement. Such divergent practices have often fueled tensions, including public disputes over the premature opening of Justice Thurgood Marshall’s archives by the Library of Congress in the early 1990s, which prompted criticism from Chief Justice William H. Rehnquist.
The Roberts Court, in particular, has tightened restrictions on access to internal records, favoring confidentiality under the belief that secrecy preserves the authority and finality of judicial decisions. This stance is notable given the court’s increasing reliance on emergency orders and “shadow docket” rulings—decisions issued without the full briefing and oral argument typical in other cases—where written opinions may be limited or absent. Scholars warn that without access to justices’ working papers, understanding the rationale and dynamics behind these decisions will remain difficult for decades, if not longer.
Compounding concerns about future transparency is the court’s apparent lack of formal procedures for preserving electronic communications such as emails and texts, despite much judicial work now occurring digitally. Court officials have declined to comment on records management policies, including whether electronic documents are routinely saved or deleted.
Until uniform policies or legal requirements are established, the Supreme Court’s internal history will continue to be shaped largely by each justice’s personal preferences. Recent examples highlight this ongoing challenge: Justice David H. Souter, who retired in 2009 and died recently, directed that his papers remain sealed for 50 years, delaying public access to records relating to significant cases such as Bush v. Gore until well into the 21st century.
The result is a judiciary that remains notably opaque compared to other branches of government, with many of its most revealing internal discussions and deliberations kept out of public view, limiting scholars’ and the public’s ability to fully comprehend the court’s evolving jurisprudence.