Thursday, March 29, 2007

The Brennan Papers

Justice William Brennan, like many who donate their papers, placed restrictions on access to his materials. The restrictions on Brennan's papers at the Library of Congress are not posted publicly and the text is not provided to researchers, which has led to confusion. Many believe that the Brennan Papers are largely closed, and access can be gained only with permission. But instead, as I discovered this week, important parts of the papers are open -- no permission needed -- through the 1974 term.

When I inquired this week, here's what I was told: There are three tiers of restrictions: material that is completely open, material that can be viewed only with permission, and material for which requests for access are not currently being accepted.

The following records are unrestricted:

Part I, Boxes 1-364
Part II, Boxes 1, 3, 4, 6

You can find out what's in these boxes through the finding aid. Click here, and then click on Brennan.

Basically, the unrestricted boxes in Part I are case files through the Oct. 1974 term. The boxes in Part II include some of the end-of-the-term memos/case histories. You can read some of these very interesting summaries at, here. Many more are in these open files.

The boxes that are RESTRICTED include later casefiles and Justice Brennan's correspondence. You can ask permission to see Part I, boxes 365-716, and Part II, boxes 2 and 5. To ask permission, you must contact the Manuscripts staff at the Library of Congress. (They give you a form to fill out, and then they pass it on.) The rest of the papers are restricted, and the Library of Congress is not supposed to accept any requests from researchers to see them. I was told that the restrictions change over time, with more materials opening up. So you always need to check with the Library of Congress.

The good news is that many files are easily accessible with no restrictions. The not-so-exciting-news is that I found that Brennan's case files are not particularly revealing. There were printed drafts of opinions, with markings, joining memos and other misc. memos, most of which were circulated to the Conference. There were no notes from oral arguments, no conference notes, no memos from clerks, no private correspondence with colleagues. (I looked only at the files for only two cases -- Milliken v. Bradley and San Antonio Indep. School Dist. v. Rodriguez. It's possible, of course, that the records are richer for other cases -- though the files for those cases are lengthy.)
For more revealing files, at the Library of Congress, try the Papers of Justice Harry Blackmun and Justice William O. Douglas.

The more interesting details in the Brennan Papers come from the end-of-the-term memos. But those do not cover all significant cases from a particular term. And while they refer to particular documents, the underlying sources are not in the file. To read them is to read an account of a history, rather than to encounter it through the primary sources themselves. So they are most valuable, but have their limits.