January 08, 2007

What Has Happened to Slate's Report on the Brennan Memos?

Earlier this afternoon, Howard Bashman linked to an article on Slate by LA Times reporter Jim Newton about the influence of Justice Brennan on the Burger Court. I took a quick glance at the article and planned to return to it later. Howard later noted that Slate took down the text of the article, but you can find the Google cached version of the article here.

The article explained: "How Brennan achieved what he did is understood mostly in the abstract. But his methods warrant closer scrutiny. Many of his papers--including a set of extraordinary annual memoranda documenting the court's work from the perspective of Brennan's chambers--have been largely kept out of public hands, stored at the Library of Congress but protected by conditions Brennan placed upon them and yearned for by scholars. Before he died, however, Brennan's son, William J. Brennan III, allowed me access to his father's papers, including those memoranda. They are a historian's trove."

I too had been granted access to Brennan's so-called case histories, but only through the year 1986. I used the papers in writing my book, "The Supreme Court and Election Law," and an article on the drafting history of Buckley v. Valeo. The only person I know who had access to the later papers is Professor Stephen Wermiel, who was given extraordinary access to the Brennan papers as part of a planned (and still not released) biography of Justice Brennan. I did not know that Newton also was given access.

I hope that the Slate series reappears, and, more importantly, that the case histories from the Rehnquist years are now released given the death of Chief Justice Rehnquist. The family had been quite reluctant to release anything while Chief Justice Rehnquist remained on the Court. It is not clear why Slate took the series down (at least for now), but I do know the family has been very sensitive about the use of these materials.

The other papers I am very anxious in seeing (especially to gain further understanding into the drafting of Buckley v. Valeo) are Justice Potter Stewart's papers, housed at Yale's law library. Those papers will not be released until some time after Justice Stevens leaves the Court.
UPDATE: Scott Hemphill emails: "It might be worth noting that many of Justice Brennan's case histories are already open to the public at the Library of Congress. Box II:6, which covers October Terms 1958 through 1974, is open. Boxes II:7 and II:8, which cover October Terms 1975 (when Justice Stevens joined the Court) through 1989, are not. For a description of the contents of each box, see www.loc.gov/rr/mss/text/brennan.html."

FURTHER UPDATE: As of 10:45 am PST, the article is back up, and this time it includes these excerpts from Justice Brennan's case histories. I have not compared the original cached version with the current version to see if there are any changes (besides the addition of the excerpts).

UPDATE 3: Dahlia Lithwick, Senior Slate Editor, emails: "Saw your posts on our Brennan series. There was no great backstory. We just discovered Monday that our dev team accidentally launched an internal version of the feature on Friday! Since the series was meant to launch today we pulled it down and relaunched it in final just now.
Hope you enjoy the series." Dahlia promises more interesting material to come.

Posted by Rick Hasen at January 8, 2007 10:15 PM