A few weeks ago, I was researching originalism and confirmation hearings for a piece I am writing with Randy Barnet for the Chicago Law Review Online (stay tuned), and came across a reference to Justice Brennan’s confirmation hearing. I read in a book on hearings that the patron saint of living constitutionalism declined to answer a question about whether “the Constitution and amendments thereto have a fixed and definite meaning when they are adopted.” (How prescient!). I wanted to find the context of the quotation, so I checked the Library of Congress’s Finding Aide for the Brennan papers on his hearing.

As I was scrolling through the document, I noticed that there was an entire box of files for correspondences from his law clerks, including Merrick Garland. (There were also folders for Richard Posner, Michael McConnell, Marsha Berzon, and Donald Verrilli, among many others). I asked Ilya Shapiro at the Cato Institute to assign one of his associates, Frank Garrison, to investigate. He went to the Library of Congress, and the Librarian told him that the box was restricted, and “he doesn’t know how long it will take the collection to respond, and he is not sure they will say yes.” I then checked with Steve Wermiel–author of a great biography about Brennan–who told me that the papers were sealed for 20 years after Brennan’s death in 1997. Alas, the papers will not be available until July 2017.

Now, Tony Mauro has the rest of the story:

Jeffrey Flannery, head of reference and reader services in the manuscript division of the Library of Congress where the papers are housed, on Tuesday identified Stephen Wermiel, a professor at American University Washington College of Law, as the executor of the Brennan papers. Wermiel is co-author of Justice Brennan: Liberal Champion, a 2010 biography of the justice and has not been known to be an executor until now.

Wermiel confirmed he is an executor of the Brennan papers—but not the only one. He declined to identify the other. The Library of Congress, he said, “prefers not to discuss” the identity of executors of papers in its custody.

As for why the Garland file is not being made public, Wermiel said, “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.”

…

The Library of Congress has told those inquiring about Garland’s file—in Box 120 of Part II—that it is not available; librarians have provided a form to request that an exception be made. This reporter’s written request was denied in an email from Flannery that stated, “Your request to access the restricted portion of the William J. Brennan Papers, specifically container II: 120, has been denied by the executor of the Brennan Papers.”

…

Wermiel said Brennan kept a file for every law clerk who worked for him “and those files tend to be filled with personal correspondence like wedding invitations, birth announcements and holiday greetings.”

Tony quotes me in the piece, and how I came across the folder:

Court scholar and blogger Josh Blackman was doing unrelated research in Brennan files recently when he saw that the justice’s papers included a folder on Garland. He soon learned that the Garland file was off-limits.

“More likely than not, there is nothing of interest in the papers,” said Blackman, a professor at South Texas College of Law. “But it would have been illuminating to review any questions Garland asked of Brennan—especially if Garland inquired about the path to becoming a judge at various stages of his career.” Blackman noted that Brennan died in July 1997, only a few months after Garland was confirmed as a judge on the U.S. Court of Appeals for the D.C. Circuit in March 1997.

Till July 2017! You can review the finding aid here.

At least I will be able to find Brennan’s papers in my lifetime. His replacement–Justice Souter–has locked down his paper still 50 years after his death. It’s even worse than the rule against perpetuities, which is limited to life in being, plus 21 years! Mike Sacks and I have a pact to read the papers, as we will be in our early 100s at the time. We may be only people still alive who actually care what Souter wrote. (Which may encourage Souter to extend it to life in being plus 75 years!).