How far does public service go?

Whenever I see a New Yorker article by Jill Lepore, I know it’s a piece I want to read. She’s a Bancroft Award-winning distinguished professor at Harvard for a reason.

Her latest, “The Great Paper Caper,” is a fascinating chronicle of U.S. Supreme Court Justice Felix Frankfurter (in office 1939-62) that not only accounts his time on the bench but, more importantly, questions what should happen with the papers of Supreme Court justices after they retire. As alluded to in the title, a great chunk of Frankfurter’s papers were stolen from the Library of Congress.

This incredible wrongdoing is compounded by the fact that, unlike other public servants working at public institutions, nothing compels the justices to release their official papers to the public. Lepore notes that the Federal Records Act (1950) excludes the Supreme Court, and subsequent additions, like the Presidential Records Act (1978), have not changed that. This means that access to the complete Frankfurter papers had been (and still is) limited, and any lost documents cannot even be remotely replaced for the public.

The “great paper caper,” then, is not only the theft of Frankfurter’s papers from the Library of Congress, but also the potential “theft” from the public by justices who would not release their unedited papers without legal compulsion.

Before delving into the “point” of this blog post, I want to say that there are few things more reprehensible in the scholarly world than stealing documents from an archive. The act is on par or worse than plagiarism, data falsification, and other research fraud or academic misconduct. I actually got a little sick to my stomach reading the article’s opening vignette about the stolen papers.

After my initial revulsion subsided, I started thinking about the wisdom of allowing Supreme Court justices to decide the manner in which their papers are released to the public or even if those ever will be. Lepore does an admirable job presenting an even-handed account of why the current system may be preferable to one where federal law mandates the release of judicial papers, but I remain entirely unconvinced.

If we find it appropriate not only to release the full papers of every president, but even to go as far as to record every Oval Office conversation, what excuses do we truly have for the Supreme Court? As Richard Nixon showed us, when presidents are allowed to censor the historical record regrettable things can happen. Lepore’s article gives a few instances where former justices have censored their papers in ways that are detrimental to the public welfare.

In the end, I think that if you’re holding an office as lofty as United States President or Supreme Court Justice, your public service does not end when you leave office. Part of the deal—part of what you owe the country—is a full accounting of your actions in the historical record. As much as is possible, your personal life should remain as personal as you want it to be. Your actions in an official capacity, however, are no longer yours—they belong to the nation and its peoples.

Obviously this opinion is influenced by my training and career as a professional historian. I owe a great debt to many governmental library holdings, without which my scholarship simply would have been impossible.

More than that, however, I would argue my belief is informed by being a civic-minded citizen. If we know anything about U.S. policymakers it is that their deliberations are often complicated—their decisions are rarely as simple as they seem to the public at the time. We deserve, as members of a democratic republic, to have to capacity to hold our elected officials (and their appointments) to a full reckoning. That is impossible without access to the papers created in the official capacities of their duties.

In addition, I believe that the best way to keep people trustworthy is to make sure that they have no occasions to be untrustworthy. Even great, honorable persons can be tempted to commit wrong when they know they can get away with it. The ability to heavily censor or not release papers gives members of the Supreme Court the ability to do so. Perhaps this is an incredibly pessimistic view of justices’ moral fiber, but I believe it is a simple recognition of human desire to escape punishment when it easily can be achieved.

Some may argue that justices need to be free from the fear of recrimination so that they can render proper, constitutional verdicts. But if they are scared of the deliberations behind their decisions being made public, shouldn’t they also be afraid of making those sorts of decisions? Justices owe the release of their papers to the public. Perhaps more importantly they owe it to themselves so that they can fulfill their charges at the highest level.

Whether you agree or disagree, feel free to leave a comment.