|Courtesy: Office of the Curator, US Supreme Court|
McReynolds may well have destroyed his docket book for the 1936 Term, but, thanks to a list released yesterday by the Office of the Curator of the Supreme Court of the United States (right; click to enlarge), we now know that his docket book for 1934 survives, as do those of many other justices.
As I said in an earlier post, the existence of the docket books is hardly a secret. Dean Robert C. Post used Pierce Butler’s, Owen Roberts’s, and Harlan Fiske Stone’s in The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, Minnesota Law Review 85 (2001): 1267-1390. I mentioned my use of Butler’s and Roberts’s docket books in a post on Crowell v. Benson (1932). Recently, Edward A. Purcell, Jr., drew upon Louis Brandeis’s and others’ in Understanding Curtiss-Wright, Law and History Review 31 (2013); 699 n. 99. But until yesterday, I believe, no one outside the Curator’s office has had a complete list of the surviving docket books.
I consider myself only an accidental constitutional historian. In Tocqueville’s Nightmare (publication date: May 21), I needed some informant to explain how American judges reconciled the administrative state and the rule of law. No one served my purpose better than did Charles Evans Hughes. Once I chose Hughes, a sally into "1937 and all that" was inevitable.
Butler's docket books helped me not only with Crowell but also with Morgan v. United States (1938). In an entry for the latter decision, Butler records Hughes's remark that although what constitutes a "full hearing" in an administrative procedure was "relative," the hearing in that case was inadequate. Hearsay though it is, Butler's report is invaluable, because Hughes destroyed his own docket books, and the chief justice's court papers are quite thin.
Not until after my second visit to the Curator's Office to work with the Butler and Roberts docket books did I realize that others existed that might help with the Supreme Court's 1935 Term, during which Brandeis reported that Hughes was "deeply unhappy" and had lost "control over the court." Charles E. Wyzanski, Jr., in a letter to his mother dated October 18, 1936, surviving in box 22 of his papers at the Massachusetts Historical Society, passed along gossip from Stone's clerk, Thomas Harris, that in conference Hughes had voted with Brandeis, Cardozo and Stone in Jones v. SEC, 298 U.S. 1 (1936), Great Northern Ry. Co. v. Weeks, 297 U.S. 135 (1936), and Elgin, Joliet R. v. U.S, 298 U.S. 492 (1936), but that he had changed his vote when he found he was in the minority, lest a series of 5-4 decisions undermine the Court's authority. I had a request pending with the Curator's Office to verify Harris's report in one of the surviving docket books for the term, but it was not granted before Tocqueville's Nightmare went to press.
In addition to the list of docket books, the Office of the Curator also released the following "Instructions to Researchers: Access to the Docket Book Collection":
The Office of the Curator at the Supreme Court of the United States maintains a collection of nearly 120 historic docket books used by former Justices. Due to the sensitive and fragile nature of these books, access is restricted. The Court will make these books available to researchers under the following procedures but reserves the right to decline access.
(1) Access to docket books is available to post-graduate scholars, professors, and historians as approved on a case-by-case basis.
(2) Researchers must submit a written request to the Office of the Curator providing:
b. Affiliated Institution.
c. Contact information, including phone number, email, and mailing address.
d. A short description of the project with timeframe.
e. A justification for why access to the docket books is required.
f. A limit of up to 20 specific case citations per request.
Please note: Requests to review an entire docket book will be denied unless there is a compelling reason that necessitates such access. In such a case, the Office of the Curator will offer a reasonable opportunity to view the book in person.
(3) Upon receipt of the above, requests will be reviewed by the Curator’s staff and submitted for approval.
(4) Upon approval, printed copies of the requested entries will provided at no cost. These copies are for research purposes only and may not be reproduced for publication.
(5) Requests will be handled in the order they are received and may take up to 6-8 weeks to review and process.
(6) Additional requests may be submitted, but each request will be handled as a new one and processed in the order it was received.
(7) The preferred citation for the docket books is: Case Name, Docket Book of Justice [name], [Term and Year], Office of the Curator, Supreme Court of the United States.
Please submit requests online here or send request to:
Office of the Curator
Attn: Docket Book Requests
Supreme Court of the United States
Washington, DC 20543
|Brandeis's Docket Book, 1935 Term|
The limits on access seem all the more incongruous when one realizes that scholars working on later periods can more easily view the Court’s deliberations, thanks to the court papers of justices deposited at the Library of Congress and other repositories. See, for example, my former Georgetown colleague Richard Lazarus’s National Environmental Policy Act in the U.S. Supreme Court: A Reappraisal and a Peek Behind the Curtains, Georgetown Law Journal 100 (2012): 1507-86.
I hope the new rules governing access to the docket books will not be the last word on the subject. I know nothing about how they were formulated, but I imagine they could be greatly improved by a referral to a committee of interested parties, including representatives of the Curator's Office and of the Supreme Court, archivists, historians, legal scholars, political scientists, and journalists.
Update: Jan Palmer and Saul Brenner, “Working with Supreme Court Docket Books,” Law Library Journal 81 (1989): 41-46, a thoughtful essay on the scholarly value of docket books, does not mention any of those now identified by the Curator’s Office. The authors may have obliquely referred to them when they described the ones they discussed as the only “presently available” docket books, “as far as we know.” And see the SSRN paper by Paul Axel-Lute, Justice Bradley's Docket Books and Law Books at Rutgers-Newark.