The Volokh Conspiracy

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Justice Stevens's Papers Will Be Released While Justices O'Connor, Kennedy, Souter, Thomas, and Breyer Are Still Alive

First stop for reporters: the Grutter and Gratz files.


Orin announced the big news: on Tuesday, May 2, the Library of Congress will release the papers of Justice Stevens through 2005. The finding aid provides the acquisition information:

The papers of John Paul Stevens, lawyer, judge, and associate justice of the United States Supreme Court, were deposited in the Library of Congress in 2005 and conveyed as a gift to the Library upon his retirement from the Supreme Court in 2010. A subsequent addition covered by Stevens's gift agreement was received in 2022 via the Supreme Court and his estate.

The bulk of the papers were deposited in 2005, which was the final full term that Chief Justice Rehnquist and Justice O'Connor served. In 2010, after Stevens retired, the remainder of his papers as a sitting Justice were deposited. Finally, the last tranche of papers was deposited in 2022, three years after his death.

Different justices have taken different approaches to releasing their papers. Chief Justice Rehnquist's papers will only be released after all of the Justices who served at that time have died–not just retired. For example, after Justice Stevens died, the Rehnquist collection would release the papers from 1976 through 1981, when Justice O'Connor joined the Court. Justice O'Connor is still alive, so all of the Rehnquist papers from 1981 to 2005 remain sealed. This policy was designed after the retirement of Justices Marshall and Blackmun. Their papers were released immediately, which revealed documents about pending cases.

Justice Stevens used some more discretion, but he will still release papers from the tenures of five still-living Justices (O'Connor, Kennedy, Souter, Thomas, and Breyer), and one still-serving Justice (Thomas). And, indirectly at least, we will gain a peek at the cert pool memos of several Justices who clerked on the Court before 2005: Chief Justice Roberts, Justice Kagan, Justice Gorsuch, Justice Kavanaugh, Justice Barrett, and Justice Jackson. Justice Stevens was not in the cert pool. But he likely has the memos from a majority of the Court. Really, the only person who has nothing to worry about here is Justice Alito, who never clerked on the Supreme Court.

The finding aid provides some insights into Stevens, including the well-known fact that he wrote his own first drafts:

The opinion files include slip opinions, correspondence with the other justices, drafts of opinions, Stevens's oral argument notes, his conference notes (recorded on the reverse side of docket sheets), and his clerk's certiorari memoranda. Additional docket sheets and certiorari memoranda for all other non-argued cases are filed in the Dockets subseries and the Certiorari Memoranda subseries. The opinion files do not include any bench memoranda. The files document Stevens's propensity for writing both dissents and concurrences and reflect that he usually wrote many of the first drafts of his opinions himself.

Though, we do learn that there was some decline in Stevens's output:

Beginning with the October 1996 term, Stevens's oral argument notes decrease and later terms contain almost none. The opinion files for Part II contain no bench memoranda.

The most relevant documents will be from a pair of cases decided during the October 2002 term: Grutter and Gratz. I'm sure enterprising reporters will mine through those documents to cast a light on the pending affirmative action cases. Hint: go to Boxes 887, 888, and 889. (This information will certainly be more fruitful than financial disclosure documents.) I'm sure we gain some insights into what Justice O'Connor really meant by the 25-year clock!

Meanwhile, Justice Souter's papers will not be released for fifty years after his death. With Souter's longevity, I may not live to see them. I doubt anyone will care in half a century.

Next up? RBG's papers, which will take us through 2020.