The Library of Congress is refusing to allow the public to view the papers of the Supreme Court justice who high court nominee Merrick Garland clerked for in the 1970s.
Garland served as the clerk for late Supreme Court Justice William Brennan Jr. from 1977-78. Supreme Court clerks are top assistants to the justices and usually are heavily involved in helping to research and draft opinions. Documents on what Garland did as Brennan’s clerk could contain significant clues as to what he would do as a justice.
Brennan’s executors say the papers will not be available for public viewing until July 2017, in keeping with the justice’s wishes, according to a report Tuesday by the National Law Journal. Brennan, considered one of the strongest liberal voices in modern times, died in 1997.
“The file on Merrick Garland, like files of all of Justice Brennan’s other law clerks, is presently closed until 20 years after his death, as part of the terms of the justice’s original bequest of the papers to the library,” Stephen Wermiel, one of three executors, told reporter Tony Mauro. Wermiel co-authored a 2010 biography of the justice titled Justice Brennan: Liberal Champion.
Wermiel said the papers did little to identify the individual clerks’ contributions to Brennan’s opinions. The information relating to Garland in the papers primarily involved “personal correspondence” between the clerk and the justice.
Josh Blackman, a law professor at South Texas College, was apparently the first to discover the prohibition. He told the Journal that he didn’t expect any bombshells in the files, but thought it nevertheless would be “illuminating” to see what insights they would have regarding Garland.
The papers of Supreme Court justices remain private property after they die or retire, and so the justices have wide latitude in determining what is done with them. The papers of Brennan’s colleague on the bench, Thurgood Marshall, for example, are also housed at the Library of Congress but are listed as “open to research.”
Marshall’s papers were mined for details regarding Justice Elana Kagan during her nomination process and frequently cited during her Senate hearings. Kagan served as Marshall’s clerk in 1988.
