Five people aware of the situation told the New York Times that Scalia had made no provision for creating an archive or controlling public access to it. The definitive inside record of his jurisprudence, and of the court’s deliberations more broadly, risked being lost entirely or released on a timetable dictated by circumstance rather than considered judgment.
What Happened to Scalia Supreme Court Papers After His Death
Scalia’s family ultimately donated his papers to the Harvard Law School Library, a collection running to approximately 400 linear feet of papers, photographs, and audiovisual material. Emails and electronic files were excluded from the donation, as were records from Scalia’s government service under the Nixon and Ford administrations and cert pool memoranda from his time on the Supreme Court.
The initial public release, in January 2020, covered only approximately 15% of the total collection: pre-Supreme Court files from 1970 to 1986, partial correspondence files through 1989, and photographs and audiovisual material spanning roughly 1975 to 2016. The bulk of the collection remains closed.
The terms of the donation impose a rolling seal on correspondence files, with records from 2016 not scheduled to open until 2047, a full 30 years after their creation. More consequentially, files relating to specific cases are to remain sealed until every other justice who participated in those cases has died, according to constitutional law scholar Steve Vladeck. That condition could keep the most historically revealing material locked away for decades.
A Court Without a Common Standard
Scalia’s lack of planning forced Chief Justice John G. Roberts Jr. into action. In a series of internal memos and conference meetings, Roberts led the remaining justices in discussions about establishing a more uniform approach to their own papers, according to several people with knowledge of the process. Those conversations have not previously been reported.
They were not the first of their kind. Chief Justice Rehnquist publicly criticised the Library of Congress in 1993 for releasing Justice Thurgood Marshall’s papers just two years after Marshall’s death, without consulting the court or his family. Rehnquist cited ‘the court’s long tradition of confidentiality in its deliberations.’ Roberts himself referenced Harry Blackmun’s papers during the December 2021 oral argument in Dobbs v. Jackson Women’s Health Organization; Blackmun had directed the Library of Congress to make his papers public five years after his death, according to Balls and Strikes.
The Library of Congress holds the principal collections of 38 justices and remains the repository most justices choose. Harvard Law School Library holds five: Joseph Story, Oliver Wendell Holmes Jr., Louis D. Brandeis, Felix Frankfurter, and Scalia. The divergence in where papers end up is one symptom of a deeper structural problem.
A 2018 law review article by Professor deMaine identified the root cause plainly: ‘the Supreme Court Justices continue to have personal ownership of their working papers, resulting in idiosyncratic retention and access decisions.’ Legal scholars have pointed out that while justices assert personal ownership, no external authority has formally upheld that claim. It is anomalous compared with other government employees, whose work product is generally owned by the state, not by the individual who produced it.
Justice John Paul Stevens illustrates what a more organised approach can look like. Stevens began donating his papers to the Library of Congress in 2005, while still serving on the court. The first instalment, covering the October 1975 through October 1984 terms, opened in 2020. A second instalment, covering October 1985 through October 2004, opened in 2023. Papers from his final terms will remain closed until October 2030, per his own instructions.
The contrast with Scalia is instructive. Stevens planned; Scalia apparently did not. As the commentary around the Times investigation has noted, the most plausible reading of the omission is not negligence on Scalia’s part but confidence: a justice who did not believe he was close to death, and who left a consequential institutional question entirely unresolved as a result.
Whether the Roberts discussions have produced anything more durable than informal consensus remains unclear. The Supreme Court of the United States has no binding rule governing what justices must do with their papers. Subject to any legislative intervention, that gap will persist, and the historical record of the court will continue to depend on the private choices of nine individuals, made without any external accountability.