The release of Stevens' Justice Private Papers Opens a Window Into the Supreme Court

WASHINGTON — In June 1992, less than two weeks before the Supreme Court reaffirmed the constitutional right to abortion set forth in Roe v. WadeJudge Anthony M. Kennedy sent a colleague some “late night musings.”

“Roe, at least, is a very close case,” Justice Kennedy wrote in a three-page memorandum, which includes reflections on the power of precedent, the legitimacy of the courts, and how best to overcome sharp dissent.

The document is part of a vast trove of private letters from Judge John Paul Stevens released Tuesday by the Library of Congress. They provide an in-depth, in-depth look at the judges who handled thousands of cases, incl Bush v. Gore and the abortion case in 1992, Family Planning v. Casey.

The newspapers were filled with candid and sometimes scathing commentary, sometimes echoing current concerns about the power and authority of the court.

In Casey's decision, Judge Kennedy combined controlling opinions with Judges Sandra Day O'Connor and David H. Souter who saved the core of the constitutional right to abortion established in Roe in 1973.

In the month of June, The Supreme Court currently overturns Roe and Casey after considering questions about precedent and court legitimacy, came to the opposite conclusion from Judge Kennedy.

There are other echoes of recent events in the newspaper Justice Stevens, who served at court for 35 years, retired in 2010 and died in 2019, aged 99.

There was, for example, an apparent leak, which prompted Chief Justice William H. Rehnquist to write an express note to all clerks on June 10, 1992. The current issue of Newsweek, the chief justice wrote, “contains a purported account of what happened inside court in the case of Planned Parenthood v. Casey.”

The article, which attributes its information to “sources” and “registrars”, said that “at least three of the nine judges plan to form an opinion on Casey” and predicted, correctly, that the decision would be released June 29.

Chief Justice Rehnquist reminded court clerks to follow a rule in the court's code of conduct, which reads, “There must be as little communication as possible between clerks and press representatives.” He added, underscoring the last three words: “In the event of any matter pending before a court, communication is most unlikely to exist at all.”

Researchers would study Stevens' paper for decades, and only small glimpses are possible in a single day's examination of some of the papers. But one glance at it makes it clear that the current chaos at court has a historical analogy.

In 2000, for example, when a court handed over the presidency to George W. Bush in Bush v. Gore by a 5 to 4 vote, majority members wrote a scathing personal memo protesting what they called too harsh language in dissent.

Dissent Judge Stevens ending like this: “While we may never know with certainty the identity of the winner of this year's presidential election, the identity of the loser is crystal clear. This is the nation's trust in judges as impartial guardians of the rule of law.”

In a memo to colleagues on December 12, 2000, the day the decision was issued, Justice Kennedy, who provided the majority, appeared hurt.

“The tone of dissent is disturbing on both an institutional and personal level,” he wrote. “I have suffered because of this and make my best judgment.”

He added, “Dissent, let me just say, is essentially trying to coerce a majority by tainting the court itself, thereby making their dire, and in my opinion unjustified, prediction a self-fulfilling prophecy.”

Judge Antonin Scalia, who also voted with a majority, said he was “the last person to complain that dissent should not be so thorough and harsh.”

But he said he couldn't help but observe that my colleagues who protested so vehemently that today's court ruling would cause irreparable harm have gone to great lengths — in a separate storm of dissent — to aid that outcome.

In the early stages of the case, Judge Stephen G. Breyer, who disagreed with Bush v. Gore, urged his colleagues to stay away from the dispute, recalling the role played by Supreme Court judges in a commission set up to settle the contested presidential election. election of 1876.

“Instead of the court providing legitimacy to the process, the process undermines the legitimacy of the court,” Judge Breyer wrote. “I very much doubt our intervention will convince anyone that the process is fairer. On the contrary, I fear that history could repeat itself, if we intervene now.”

In a statement following the recent Supreme Court abortion ruling, the Dobbs Women's Health Organization v. Jackson, Judge Samuel A. Alito Jr. said that an attack on the legitimacy of the courts, contrary to reason, must be out of bounds.

In a 1992 memo containing “late night musings”, which was addressed to Justice Souter and copied to Judges O'Connor and Stevens, Justice Kennedy also reflected on the legitimacy of the courts in the context of abortion.

He seemed troubled with aspects Chief Justice Rehnquist's dissentwhich says public opinion should not influence the work of courts.

“You can fend off the chairman,” Justice Kennedy told Justice Souter, “by arguing that we are not concerned with defending our legitimacy for our own sake but for the sake of the Constitution. So, when we talk about the principled character of our decisions, we mean that they are informed by precedent, logic and the traditions of our people, all referenced to our constitutional heritage.”

“We must be clear,” he continued, “that we are not guided by expediency, contemporary attitudes, or our own morality.”

The newly released files cover the years to 2005, when Chief Justice John G. Roberts Jr. join the Supreme Court. They were filled with notes in Judge Stevens' scrawl that were not always legible, marked-up briefs, opinion drafts, tallying votes, memos between judges, recommendations from clerks, and all manner of other documents.

Prior to the new release, the most recent set of Supreme Court letters were from the files of Judge Harry A. Blackmun, who served until 1994 and died in 1999.

The only current member of the court featured in the new dossier is Justice Clarence Thomas. The remaining portions of Justice Stevens' paper are slated for release in 2030.

Kitty Bennett research contributions.